The City

The Resurrection of Jesus in the Light of Jewish Burial Practices

By Craig Evans

The resurrection of Jesus of Nazareth, who was put to death on a Roman cross, in Jerusalem, in the early spring of either AD 30 or 33, lies at the very heart of Christian faith and is the principal datum that accounts for the emergence of the Christian church. Skeptics, not surprisingly, express doubt. They usually say that the resurrection story is legend, myth, inadequately supported by eyewitness testimony, or the result of some elaborate hoax or conspiracy. In recent years a number of skeptics, including scholars who ought to know better, have charged that the story of the burial of Jesus itself is unhistorical, that Roman law did not in fact permit the burial of the crucified, and that the story of the burial is therefore simply part of early Christian apologetic, designed to confirm the story of the resurrection. A few of these scholars have suggested that in all probability the body of Jesus was not buried but left hanging on the cross or at best was cast into a ditch where it was mauled by animals. Skepticism regarding the burial of Jesus is ill-founded, in the light of Roman law and Jewish law, custom, and practice. The present essay will review both of these elements.

ROMAN LAW ACCORDING TO THE DIGESTA

     Roman law regarding the burial of the executed is far more nuanced —and lenient — than many suppose. In the Digesta, compiled by Romanemperor Justinian in the sixth century (AD 530–533) but comprising a great deal of law from the first and second centuries, we find important and relevant material in chapter 24 of book 48. All three of the paragraphs that make up chapter 24, the final chapter, entitled De cadaveribus punitorum (“On the bodies of the punished”), are helpful. I shall treat paragraphs §1 and §3, both of which directly bear on the question of the burial of the executed.

§1 Ulpian,  Duties of Proconsul, book 9: The bodies of those who are condemned to death should not be refused their relatives; and the Divine Augustus, in the Tenth Book of his Life, said that this rule had been observed. At present, the bodies of those who have been punished are only buried when this has been requested and permission granted; and sometimes it is not permitted, especially where persons have been convicted of high treason. Even the bodies of those who have been sentenced to be burned can be claimed, in order that their bones and ashes, after having been collected, may be buried.
§3 Paulus, Views, book 1: The bodies of persons who have been
punished should be given to whoever requests them for the
purpose of burial.
     More than forty percent of Justinian’s Digesta has been drawn from the writings of the jurist Ulpian (c. AD 170–223). One of his frequently cited works is his officio proconsulis (Duties of Proconsul). In the first paragraph of chapter 24 the Digesta quotes an opinon from the ninth book of officio proconsulis: “The bodies of those who are condemned to death should not be refused their relatives.” Ulpian supports his opinion by appealing to the precedent of the great emperor Augustus (ruled 31 BC – AD 14), which was expressed in his autobiography written near the end of his life. Ulpian goes on to say that “the bodies of those who have been punished are only buried when this has been requested and permission granted.” A statement in the lex Puteolana (at II.13) gives the impression that
Romans, as did Jews in Israel, had burial pits reserved for criminals and others buried without honor.
     Both Ulpian’s legal opinion and the practice that apparently was
observed during the rule of Augustus are directly relevant for the juridical process concerning Jesus we see in the Gospels. Burial of the bodies of the executed was permitted in the Roman Empire in the approximate time of Jesus. It was the practice of the Augustan administration and it was the opinion of Ulpian who lived two centuries later and, as we see in paragraph §3, it was also the opinion of Paulus, a younger contemporary of Ulpian’s. The Gospel narratives are fully consistent with Roman practice and legal opinion.
     But what about Ulpian’s comment, “sometimes it [burial] is not
permitted, especially where persons have been convicted of high treason?” Was Jesus “convicted of high treason” (maxime maiestatis causa damnatorum) and therefore permission might not have been granted for the burial of his corpse? It seems most unlikely that Jesus was condemned for “high treason,” given the discussion of treason (maiestas) in Digesta 48.4.1–11. Cited authorities include Ulpian, Marcian, Scaevola, and others. Almost all of the examples discussed in chapter 4 of book 48 involve serious violence against the state, “against the Roman people or against their safety,” including plotting the death of the emperor, plotting or attempting to assassinate a Roman official, raising an army, failing to relinquish command of an army, siding with an enemy of the empire, fomenting armed rebellion, turning an ally against Rome, etc. Jesus did nothing that approximated these kinds of actions.
     Some have contended that Jesus’s demonstration in the temple precincts (Mark 11:15–18 parr.) may well have been viewed as an attempt to overthrow Jewish authority and Roman government. For several reasons this argument has persuaded few. For one, Jesus had no armed following. Had he and his following attempted a violent takeover, many would have been killed and injured, which would have been mentioned by Josephus and other writers. But all we have is the crucifixion of Jesus, not the rounding up and execution of dozens, if not hundreds of followers. Josephus describes Jesus as a teacher and wonder-worker (Ant. 18.63–64). There is no hint that Jesus had engaged in violence. Had Jesus been involved in some treasonable action, especially one involving arms, one would have expected Josephus to tell a very different story. It is likely too that the Roman writers who mention Jesus and the rise of Christianity (e.g., Suetonius and Tacitus) would have mentioned a violent takeover attempt had there been one.
     Opinion §3 on the laws relating to bodies of the executed is quite brief. The opinion of Paulus (Views, book 1), or Julius Paulus Prudentissimus, a jurist who flourished in the late second and early third centuries AD, is cited without qualification or exception: “The bodies of persons who have been punished should be given to whoever requests [petentibus] them for the purpose of burial.” Bodies of the executed should be allowed burial, but official requests must be made; bodies cannot simply be taken down from crosses or gibbets without permission. Josephus (AD 37 – c. 100) himself makes such a request of Titus, son of Vespasian, and it is granted (Life 420–21)
     It is clear from the early laws and opinions cited in the Digesta that in most cases the bodies of the executed, including those crucified, were permitted burial, if requests were made. We see this in the case of Jesus, whose body for burial was requested by Joseph of Arimathea, a member of the Jewish council (Mark 15:42–47 parr.). This is completely consistent with Jewish law and custom, which placed the burden of burial on the Jewish council (or Sanhedrin) when it condemned and executed someone.

JOSEPHUS ON CRUCIFIXION AND BURIAL

     The most pertinent statement comes from Josephus, who complains of the crimes of the rebels during the great Jewish revolt (AD 66–73). He finds particularly heinous the rebels’ treatment of the ruling priests, whom they murdered:
They actually went so far in their impiety as to cast out the corpses without burial, though the Jews are so careful about funeral rites that even malefactors who have been sentenced to crucifixion are taken down and buried before sunset. (J.W. 4.317)

     What Josephus  says here is especially relevant for the question of the burial of the crucified Jesus. Josephus is speaking of his own time, that is, from the time of Pontius Pilate, prefect of Samaria and Judea, to the time of the Jewish revolt. He clearly states that those executed by crucifixion were “taken down and buried before sunset.” Because only Roman authority in Samaria and Judea could execute anyone ( Josephus, J.W. 2.117; Ant. 20.200–203; John 18:31), we must assume in the statement by Josephus that those who do the crucifying are the Romans. Though  executed by the Romans, those crucified were buried. If condemned by the Jewish council, it was incumbent on the council to arrange for the burial of the executed (m. Sanhedrin 6.5–6; more on this below). This was done out of concern for the purity of the land, not out of pity for the executed or his family (Deut 21:23).

Josephus also states that those executed by crucifixion were “buried before sunset.” Here we must  assume that Josephus refers to his own people who do the burying , for the concern to bury the executed person “before sunset” is a Jewish concern not a Roman one. This Jewish practice was based on Deut 21:22–23 (“. . . his body shall not remain all night upon the tree, but you shall bury him the same day . . .”; RSV ), a law very much in force in the time of Jesus, as seen in contemporary literature, such as the Dead Sea Scrolls (e.g., 11Q19 64:7–13). What we have here is fully consistent with what we see in the Gospels: The Romans crucify Jesus and two other men and the Jews bury them. To argue that because a malefactor was executed by Roman authority he likely would not be buried flies in the face of the evidence that Roman authority in Jewish Palestine, during peacetime, in fact did accommodate Jewish customs and sensitivities, which included doing nothing that defiled the land.

     There is also archaeological  evidence  that corroborates the literary evidence. One  thinks  of  the  crucified remains  of  one  Yehohanan, crucified under the authority of Pontius Pilate. Though crucified, he was nevertheless properly buried (with an iron spike still embedded in his right heel). The skeletal remains of at least three other executed persons have been recovered from tombs and ossuaries, as well as dozens of nails and spikes, many of which had been used in crucifixion.

The evidence in hand probably represents only a small fraction of what existed at one time. This is because the small bones (hands and feet), which provide evidence of crucifixion, rarely survive intact. Moreover, we should assume that the remains of most of those crucified were from the lower classes and so would not have been placed in ossuaries in secure tombs, as were the remains of Yehohanan, who evidently belonged to a family of means. The archaeological evidence, as limited as it is, supports the literary evidence in suggesting that in Palestine in the time of Jesus the crucified were in fact buried.

CONCLUDING REMARKS

The burial narratives of the New Testament Gospels are not only “consistent with archaeological evidence and with Jewish law,” as archaeologist Jodi Magness has said1 they are consistent with Roman law and with Roman literary and archaeological evidence. The legal opinions provided in the sixth-century Digesta 48.24 are early and are corroborated by first century  literary and archaeological  evidence. Joseph’s  request to bury the body of Jesus was fully in keeping with law and practice throughout the Roman Empire and, especially, in the Jewish homeland, where a corpse left unburied overnight was seen as a defilement of the land. (This equally applies in an eschatological setting ; see 4Q285 frag. 5= 11Q14 frag. 1, col. i, where after the Kittim [ = Romans] are defeated in battle, the priests give oversight to purification “from the guilty blood of the corpses” of the enemy.)

Every source we have indicates that the practice in Israel, especially in the vicinity of Jerusalem, in peacetime, was to bury the executed before nightfall. This was a practice that Roman authority permitted. War was another matter, of course. When Titus besieged Jerusalem from AD 69 to 70, thousands of Jews were crucified and very few of them were buried. The whole point of these thousands left unburied in plain view of the inhabitants of Jerusalem was to terrorize the resistance and bring the rebellion to an end (as recounted by Josephus, J.W. 5.289, 449). This was the true “exception that proves the rule”: Roman authority in Israel normally did permit burial of executed criminals, including those executed by crucifixion (as Josephus implies), but it did not during the rebellion of 66–70.

There is another important point that needs to be made. The process that led to the execution of Jesus, and perhaps also the two men crucified with him, was  initiated  by the  Jewish Council.  According  to law and custom when the Jewish council (or Sanhedrin) condemned someone to death, by whatever means, it fell to the council to have that person buried. This was the role played by Joseph of Arimathea, a member of the Jewish council (Mark 15:43). The executed were to be buried properly, but not in places of honor, such as the family tomb. This is clearly taught in the earliest writings of the rabbis: “They did not bury (the executed criminal) in the burying-place of his fathers. But two burying-places were kept in readiness by the Sanhedrin, one for them that were beheaded or strangled, and one for them that were stoned or burnt” (m. Sanhedrin 6:5, emphasis added; “strangled” would include those hanged and those crucified). The place reserved for burial of criminals was  sometimes referred to as a “wretched  place”: “Neither a corpse nor the bones of a corpse may be transferred from a wretched place to an honored place, nor, needless to say, from an honored placed to a wretched place; but if to the family tomb, even from an honored place to a wretched place, it is permitted” (Semahot 13.7).

Not only was the body of a criminal not to be buried in a place of honor, no public mourning for executed criminals was permitted: “they used not to make [open] lamentation . . . for mourning  has place in the heart alone” (m. Sanhedrin 6:6). None of this law would make any sense if executed criminals were not in fact buried. There would have been no need to set aside tombs for executed criminals. There would simply be no remains to transfer from a “wretched place” to an “honored place.”

The Jewish council was responsible to oversee the proper burial of the executed because the bodies of the executed were normally not surrendered to family and friends. The burial of the executed in “wretched places,” that is, in tombs set aside for criminals, was part of the punishment. No public mourning and lamentation were permitted. The remains of the executed could not be transferred from these dishonorable tombs for one year. After one year (see b. Qiddushin 31b), the remains could be taken by family members to the family tomb or to some other place of honor.

The terse, almost matter-of-fact burial narrative we find in Mark 15 exhibits realism at every point. The narrative agrees with what is known of the  relevant literature and  archaeological data,  both  Jewish and Roman, both Palestinian and elsewhere in the empire. That the body of Jesus was taken down from the cross and placed in a known tomb, under the direction of someone acting on behalf of the Jewish Council, should be accepted as historical.

In view of the evidence relating  to burial,  whether in the Roman Empire in general or more specifically in Israel whose Jewish population was greatly concerned with protecting the purity of the land, it seems highly probable that Jesus and others who were executed were in fact buried. Discussion of the resurrection of Jesus should assume that Jesus had been buried. One must then ask in what sense the first Christians would have spoken of “resurrection,” had the body of Jesus remained in a tomb, awaiting the future gathering of its skeletal remains for interment in the family tomb? It seems to me that the burial of Jesus has profound implications for the discussion of his resurrection.

The  resurrection of  Jesus  launched the  Christian  movement. Its proclamation was the initial message, and along with it was the assumption, as well as knowledge,  of the burial of the body of Jesus. Debate centered on the question of the resurrection will make no progress by gratuitously asserting that no burial took place or, if it did, no one knew where it took place. Believers and skeptics alike should judge the burial tradition as early and highly probable tradition.

 


1J. Magness, “Jesus’ Tomb : What Did it Look Like ?” in H. Shanks (ed.), Where Christianity Was Born ( Washing ton, D C : Biblical Archaeology Society, 2006) 212–26, with quotation from p. 224. Magness is rightly contradicting John Dominic Crossan’s claim that the burial of Yehohanan was unusual and that Jesus of Nazareth probably was not buried.

 


About the Author

CRAIG A. EVANS, PhD, DHabil, is the John Bisagno Distinguished Professor of Christian Origins and dean of the School of Christian Thought at Houston Baptist University. He has published extensively on Jesus and the Gospels and has appeared in several television documentaries and news programs.

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