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The Historicity of the Empty Tomb Evaluated: Roman Crucifixion and Jewish Burial

6. Roman Crucifixion and Jewish Burial


This belongs to the improbability section properly, but I have set it apart. Unless the tomb burial by Joseph of Arimathea can be shown to be an accurate account (and arguments to that effect will be considered), then to be able to reconstruct the most likely history of what happened to the body of Jesus after the crucifixion will require some general background on the methods and purpose of Roman crucifixion and Jewish burial in the ancient world.

Gerard Sloyan indicates the brutality that crucifixion entails:

Seneca (d. 65 C.E.) refers to a variety of postures and different kinds of tortures on crosses: some victims are thrust head downward, others have a stake impale their genitals (obscena), still others have their arms outstretched on a crossbeam. The Jewish historian Josephus, writing of the Jewish War of the late 60s, is explicit about Jews captured by the Romans who were first flogged, tortured before they died, and then crucified before the city wall. The pity he reports that Titus, father of Josephus’s imperial patron Vespasian, felt for them did not keep Titus from letting his troops dispatch as many as five hundred in a day: “The soldiers, out of the rage and hatred they bore the prisoners, nailed those they caught, in different postures, to the crosses for the sport of it, and their number was so great that there was not enough room for the crosses and not enough crosses for the bodies.” Josephus calls it “the most wretched of deaths.” He tells of the surrender of the fortress Machaerus on the east shore of the Dead Sea when the Romans threatened a Jewish prisoner with crucifixion.

An especially grim description of this punishment, meted out to murderers, highwaymen, and other gross offenders, is the following from a didactic poem: “Punished with limbs outstretched, they see the stake as their fate; they are fasted, nailed to it with sharpest spikes, an ugly meal for birds of prey and grim scraps for dogs.”

Much later in Latin speech “Crux!” became a curse, to indicate the way the speaker thought the one accursed should end. Other epithets among the lower classes found in Plautus, Terence, and Petronius are “Crossbar Charlie” (Patibulatus) and “Food for Crows” (Corvorum Cibaria).[53]

Sloyan indicates who merited this most ignominious form of execution:

What types of persons were subjected to this cruel ending in the ancient world, and to whom was it seldom or never administered? The short answer to the first is: the slaves and lower classes; soldiers, even in command positions (but not generals); the violently rebellious and the treasonous. As to the second, citizens of the Greek city-states and of the Roman state were usually done away with more briskly, seldom by crucifixion. . . It was considered too cruel and, not least, too demeaning for the upper classes. Administered to any but slaves and those who threatened the existing social order, it would be an admission that the minority citizen class could be capable of such bestial conduct [so as to deserve crucifixion].[54]

Raymond Brown comments on Roman attitudes to the bodies of the crucified:

In investigating Roman customs or laws dealing with the burial of crucified criminals, we find some guidance in DJ 48.24, which gives the clement views of Ulpian and of Julius Paulus from the period CA. AD 200. The bodies of those who suffer capital punishment are not to be refused to their relatives (Ulpian) nor to any who seek them for burial (Paulus). Ulpian traces this attitude back to Augustus in Book 10 of Vita Sua, but he recognizes that the generous granting of bodies may have to be refused if the condemnation has been for treason (maiestas). The exception was verified a few years before Ulpian in the treatment of the martyrs of Lyons reported in Eusebius (EH 5.1.61-62): The bodies of the crucified Christians were displayed for six days and then burned so that the ashes might be scattered in the Rhone. Christian fellow-disciples complained, “We could not bury the bodies in the earth…neither did money or prayers move them, for in every possible way they kept guard as if the prevention of burial would give them great gain.”

If we move back from the 2d cent., what was the Roman attitude at the time of Jesus towards the bodies of crucified criminals? Despite what Ulpian tells us about Augustus, he was not always so clement. Suetonius (Augustus 13.1-2) reports, with the obvious disapproval of 2d-cent. hindsight, that Augustus refused to allow decent burial for the bodies of those who fought for Brutus: “That matter must be settled with the carrion-birds.” Since Augustus would have looked on Brutus as a traitor, the parallel to the question of what would happen to those convicted of treason (maiestas) is significant. In the reign of terror that followed the fall of Sejanus (AD 31), Tacitus reports the actions of Tiberius: “People sentenced to death forfeited their property and were forbidden burial” (Annals 6.29). Beyond such imperial vengeance, severity is assumed to be normal by Petronius (Satyricon 111-12), as in Nero’s time he writes the story of a soldier at Ephesus who neglected his duty of preventing the bodies of dead criminals from being removed from the cross. While he was absent in the night making love to a widow, the parents came stealthily, took the body down, and buried it, causing the soldier to fear the severest punishment. Evidently it was almost proverbial that those who hung on the cross fed the crows with their bodies (Horace, Epistle 1.16.48).

Discerning Roman legal practice for a province like Judea is difficult. The law cited above (DJ) was juxta ordinem, i.e., customary law in Rome for dealing with Roman citizens. Decisions in the provinces dealing with non-citizens were most often extra ordinem, so that such a matter as the deposition of crucified bodies would have been left to the local magistrate. Before Jesus’ time, in Sicily, much closer to Rome, Cicero (In Verrem 2.5.45; #119) reports that a corrupt governor made parents pay for permission to bury their children. Philo (In Flaccum 10.83-84) tells us that in Egypt, on the eve of a Roman holiday, customarily “people who have been crucified have been taken down and their bodies delivered to their kinfolk, because it was thought well to give them burial and allow them ordinary rites.” But the prefect Flaccus (within a decade of Jesus’ death) “gave no orders to take down those who had died on the cross,” even on the eve of a feast. Indeed, he crucified others, after maltreating them with the lash.[55]

Raymond Brown provides information on Jewish attitudes towards the crucified as well:

As we have seen (pp. 532-33 above), there is solid evidence that in Jesus’ era crucifixion came under the Jewish laws and customs governing hanging, and in particular under Deut 21:22-23: “If there shall be against someone a crime judged worthy of death, and he be put to death and you hang him on a tree, his body shall not remain all night on the tree; but you shall bury him the same day, for cursed of God is the one hanged.” The conflict between Roman and Jewish attitudes is phrased thus by S. Lieberman: “The Roman practice of depriving executed criminals of the rite of burial and exposing corpses on the cross for many days…horrified the Jews.” In the First Jewish Revolt the Idumeans cast out corpses without burial. Commenting with disgust on this, Josephus states, “The Jews are so careful about funeral rites that even those who are crucified because they were found guilty are taken down and buried before sunset.”

The crucial issue in Judaism, however, would have been the type of burial. The hanged person was accursed, especially since most often in Jewish legal practice this punishment would have been meted out to those already executed in another way, e.g., stoning. In the OT we see a tendency to refuse to the wicked honorable burial in an ancestral plot (1 Kings 13:21-22). Even a king like Jehoiakim, despite his rank, having been condemned by the Lord for wickedness, had these words spoken of him by Jeremiah (22:19): “The burial of an ass shall be given him, dragged and cast forth beyond the gates of Jerusalem.” Jer 26:23 refers to a prophet condemned (unjustly) and slain by the king being thrown “into the burial place of the common people” (see also II Kings 23:6). I Enoch 98:13 excludes from prepared graves the wicked who rejoice in the death of the righteous, and Josephus (Ant. 5.1.14; #44) has Achar at nightfall given “the ignominious burial proper to the condemned” (see also 4.8.24; #264). The account of the death of Judas in Matt 27:5-8 shows that the Jews of Jesus’ time would think of a common burial place for the despised, not a family tomb.[56]

Brown suggests that this may not have applied to Jesus if the condemnation was considered unjust in the sight of God to the Jews:

In a political situation where the death penalty was imposed by the Gentiles, however, the opposite could be true: An innocent or noble Jew might be crucified for something that did not come under the law of God, or indeed for keeping the divine law. . . According to Mark/Matt the Sanhedrin found him worth of death on the charge of blasphemy, and Josephus (Ant. 4.8.6; #202) would have the blasphemer stoned, hung, “and buried ignominiously and in obscurity.” Mart. Of Polycarp 17:2 has Jews instigating opposition lest the body of Polycarp be given to his adherents for honorable burial. On the other hand, Jesus was executed by the Romans not for blasphemy but on the charge of being the King of the Jews. Could this have been regarded as a death not in accordance with Jewish law and so not necessarily subjecting the crucified to dishonorable burial?[57]

From the information presented by Brown, we can begin to see the outline of the dilemma presented by the burial of Jesus, which requires any theory of honorable burial to steer carefully between the Scylla of the Roman charge of sedition and the Charbydis of the Jewish accusation of blasphemy. These are treacherous waters indeed, and it must be wondered if they can be navigated safely.

The information presented on the Roman practice of crucifixion shows that the very act of taking a body down from the cross for burial was, if practiced at all, the exception to the rule. The popular phrase “Food for Crows,” the line about the crucified being an “ugly meal for birds of prey and grim scraps for dogs,” the response of Tiberius to the request for burial, the comment from Horace, and finally the story from Petronius about the guard who allowed the body to be stolen off the cross all indicate that part of the very shame of crucifixion was the denial of burial rites as a last act of humiliation. Moderns do not quickly recognize the cruelty of this, but in ancient times to die without proper burial was considered a most horrible fate, particularly to the Jews. Yet, as Sloyan shows, crucifixion itself was an exercise in cruelty. Reserved for “slaves and those who threatened the existing social order,” it cannot be assumed that any mercy would be shown to one who had been considered deserving crucifixion.

The exceptions truly are exceptional. As Brown indicates, the comments of Ulpian and Paulus in favor of permitting burial – except, as always, for treason – apply to the more clement situation in Rome. Philo of Alexandria indicates that a case of releasing the body was a somewhat unordinary gesture of goodwill that was extended on a Roman holiday yet sometimes not even then.

If one thing is clear, however, it is that no leniency is shown for those who fall under the banner of insurrection, sedition, or treason against Rome. Although Brown makes a distinction between maiestas in Roman jurisprudence that would apply strictly to those arranging military manouvers as opposed to a more informal execution of a perceived instigator or trouble-maker by the governor of a province, the principle in either case is the same. To respect a common crucified criminal with honorable burial is unusual, but to respect one who is perceived as a threat to Roman rule is, well, right out.

Some might wish to avoid this conclusion by declaring the Sanhedrin to have charged Jesus with blasphemy. Yet this is no better. Clearly, those sentenced to execution by the Sanhedrin were not to be given honorable burial.

Yet continuing with the idea that Pilate made the judgment for crucifixion, is it most likely that Pilate would have left the body hanging on the cross for several days? While it should not be ruled out entirely, there is at least one reason that judges against it. This consideration has nothing to do with the mercy or brutality of Pilate. Pilate should not be assumed to act as a sadist (or saint) but rather as a prudent politician. Pilate could only be acutely aware of the fact that the time was the Passover festival, that Jerusalem was swarming with travelers and activity, and that it would do grievous insult to the Jerusalem populace and Jews at large to continue to hang the bodies on display through the sabbath and the rest of Passover. Pilate was no fool and had no wish to incite unrest by his own actions. At the same time, however, Pilate could hardly intend to give respect to the one he crucified. Pilate would want to avoid insulting the people as well as to avoid respecting the crucified. The logical conclusion is that Pilate should order dishonorable burial in a criminal’s graveyard for the body of Jesus and the two lestai with him.

I say it in this way, that Pilate should order dishonorable burial because that is indeed what Pilate should do. Pilate is perfectly capable of finishing off his own executions. If Pilate is acting on his own authority in crucifying Jesus, not merely acquiescing to the demands of a Sanhedrin unwilling to carry out their own verdict, there is no reason for Pilate to allow any third party burial service to swoop in.

And I say it that way because the character of Joseph has all the signs of deus ex machina in the Markan plot. Jesus has been abandoned by his disciples, convicted by the Sanhedrin, and executed by Pilate. Yet along comes the noble knight riding in from Arimathea, daring to ask Pilate to be able to meddle in his affairs, disregarding the prohibition on honorable burial for the condemned, and providing proper interment in his own newly rock-hewn tomb before sundown on the sabbath, which just happens to be nearby and which just happens to have never contained anyone yet (lest he defile the grave of his ancestors).

How does Raymond Brown deal with this enigma of a man, Joseph of Arimathea? Brown suggests that Joseph was merely a “pious Sanhedrinist” who desired to see that God’s law be carried out with respect to burial before the sun sets.[58] This thesis is not without its difficulties. For example, in Mark, Joseph requests the body of Jesus specifically and disregards the other two crucified. The pious Jew presumably would have wanted to take care of all three; alternatively, if it be supposed that the thieves would have been buried by the Romans anyway, then there is no reason for the pious Jew to get involved at all. Brown suggests, “We have to assume that the story in the Synoptics has been narrowed down in its focus to Jesus, ignoring the two others who were no longer theologically or dramatically important.”[59] This is not entirely unreasonable, although it would be another mark against the reliability of Mark, who does seem to assume that no other bodies were placed in the tomb with Jesus. But is it very likely that a pious Sanhedrinist would be rushing about on the day before the sabbath during the Passover to have the bodies of the crucified properly buried? As I have indicated, Pilate was perfectly capable of performing the burial with his own means, and thus there would be no offense to the law of God. Indeed, the Romans were in an easier position to perform the burial, since they would not have acquired ritual impurity thereby. Moreover, the historical Joseph would probably have had better things to do at this time than greatly inconvience himself for those who could only be commonly perceived as crucified scum, the Galilean just as much as the highwaymen.[60] Not only would it require the ritual impurity of himself or the summoning of his servants to the cross, as well as the expense of the linen and anointing oil, but most of all it would require the use of his own nearby rock-hewn tomb (which, again, just happens to have nobody buried there yet). Tombs at that time were undoubtedly expensive to build or to quarry, and for this reason tombs were jealously preserved within families over several generations. The only motivation for a pious Jew to undertake a tomb burial for the man would be a strong belief that the crucified deserved an honorable burial. However, this would require that Joseph considered the charge to be unjust in the sight of God. Not only is it difficult to understand why a simple pious Sanhedrinist would be moved to conclude that such a one had been crucified unjustly, but it is hardly plausible that Pilate would have allowed Jesus to be given an honorable burial, as this would be tantamount to an admission that Jesus was crucified without just cause.

It is not without reason, therefore, that Craig suggests that Joseph was indeed a secret admirer of Jesus: “his daring to ask Pilate for a request lacking legal foundation, his proper burial of Jesus’s body alone, and his laying the body in his own, expensive tomb are acts that go beyond the duties of a merely pious Jew.”[61] Against such a view, Brown writes, “No canonical Gospel shows cooperation between Joseph and the women followers of Jesus who are portrayed as present at the burial, observing where Jesus was put (Mark 15:47 and par.). Lack of cooperation in burial between the two groups of Jesus’ disciples is not readily intelligible, especially when haste was needed. Why did the women not help Joseph if he was a fellow disciple, instead of planning to come back after the Sabbath when he would not be there?”[62] Again we might wonder what could have motivated the Sanhedrinist to an admiration for this particular crucified Galilean, especially if there were any historical reality to the actions of Jesus against the Temple. An original tradition that Jesus was buried by hostile figures would count against the disciple interpretation. Moreover, the tendency is towards making Joseph appear more like a disciple and thus suggests that the historical reality was nothing of the sort. As Brown says of those who take Mark as meaning that Joseph was a devotee of Jesus, “If that was what Mark meant, why did he take such an indirect and obscure way of saying so?”[63] Brown shows the figure of Joseph as it moves from Mark, to the later evangelists, to the Gospel of Peter, to the Gospel of Nicodemus, and eventually into the Glastonbury legend to exhibit an increasing sense that Joseph was a model disciple of Jesus.[64] Craig has added his own speculation to the mix of legend concerning Joseph with his suggestion that Joseph was a delegate of the Sanhedrin and a secret disciple who was commissioned to dispose of all three bodies in a criminal’s grave yet who nevertheless tricked both Pilate and the Sanhedrin by giving a proper burial for the Lord in his own nearby tomb.[65] Craig had already noted considerations against the idea that Joseph was acting as anything other than a private citizen: “None of the gospels suggest that Joseph was acting as a delegate of the Sanhedrin; there was nothing in the law that required that the bodies be buried immediately, and the Jews may have been content to leave that to the Romans. That Joseph dared to go to Pilate and ask specifically for Jesus’s body is difficult to understand if he was simply an emissary of the Sanhedrin, assigned to dispose of the bodies.”[66] It is for these reasons that Craig seems to prefer the suggestion that the Romans disposed of the thieves while Joseph took the body of Jesus. Yet again, however, Jesus is the least likely of the three for Pilate to release, for not only might it suggest that the crucifixion was unjust but it also would lend justification to whatever sedition that Pilate suspected and would honor one who had been condemned as a threat to order.

There is one final reason to think that Pilate would have ensured that Jesus did not receive an honorable tomb burial. Raymond Brown notes, “There was in this period an increasing Jewish veneration of the tombs of the martyrs and prophets.”[67] Craig agrees, stating, “During Jesus’s time there was an extraordinary interest in the graves of Jewish martyrs and holy men and these were scrupulously cared for and honored.”[68] If Pilate considered the historical Jesus to be an enemy of the state, how much more would Pilate have to fear not only making him a martyr but also establishing a shrine to Jesus right in Jerusalem? It is in Pilate’s best interest to make certain that Jesus would have been buried without honor and in obscurity.


[53] Gerard Stephen Sloyan, The Crucifixion of Jesus: History, Myth, Faith (Minneapolis: Fortress Press, 1995), pp. 15-16.

[54] Sloyan, ibid., p. 18.

[55] Brown, ibid., pp. 1207-1208.

[56] Brown, ibid., pp. 1209-1210.

[57] Brown, ibid., p. 1210.

[58] Brown, ibid., p. 1218.

[59] Brown, ibid., p. 1216.

[60] It is not exactly clear what the charge was against the lestai; they are described as thieves, highwaymen, or sometimes revolutionaries. In any case, the man crucified betwixt the two was not likely to receive better treatment and perhaps even less likely. Among other reasons, there was snobbery of people in Jerusalem against Galileans. There were some who thought that no good could come from Galilee, cf. Jn 1:46, Jn 8:52. But, most importantly, it would be assumed that someone who was crucified most likely deserved it unless there was some compelling reason to think otherwise. I find it hard to see how someone on the Sanhedrin would have been compelled to think otherwise of one who, if the gospel record is to be trusted here, opposed the Temple and was declared “King of the Jews.”

[61] Craig, ibid., p. 176.

[62] Brown, ibid., p. 1218.

[63] Brown, ibid., p. 1215.

[64] Brown, ibid., pp. 1232-1234.

[65] Craig, ibid., p. 176.

[66] Craig, ibid., p. 175.

[67] Brown, ibid., p. 1280.

[68] Craig, ibid., p. 356.

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