Devotional 98: The Continuing Use of the Moral Law: A Rule of Life to Believers

The Confession Read

To them also, as a body politic, he gave sundry judicial laws, which expired together with the State of that people; not obliging any other now, further than the general equity thereof may require.

— Westminster Confession of Faith, Chapter 19, Section 4

Introduction

At the foot of Mount Sinai, the same God who thundered the ten words from the summit also gave detailed legislation for the common life of His covenant people. If the Decalogue was the constitution, the judicial laws were the statute-book, the legal code by which Israel, as a nation among the nations, was to order its courts, its property relations, its criminal justice, and its civic institutions. And just as the ceremonial laws addressed Israel as a worshipping church, so the judicial laws addressed Israel as a body politic, a commonwealth governed by laws received not from a human legislator but from the mouth of God Himself. For as long as Israel remained a distinct civil state under the immediate theocratic rule of Jehovah, those laws remained in force. But when that state dissolved, when the sceptre departed from Judah and the commonwealth of Israel ceased to exist as a political entity, the judicial laws expired with it. They were not abrogated, as the ceremonies were, by their fulfilment in Christ. They expired by the dissolution of the civil entity for which they were given. Yet their general equity remains, and upon this single word turns every question of Christian political ethics. The wisdom of God does not become obsolete with the passing of a particular polity. The principles of justice that the judicial laws embodied, rooted as they are in the character of God and the moral order of creation, continue to instruct the nations in what righteousness requires, so far as those principles may be disentangled from the particular circumstances of the Israelite theocracy and applied to the very different conditions of human governments in the age of the gospel. This is the delicately balanced doctrine that the fourth section of the nineteenth chapter places before us, and it is among the most practically consequential doctrines in the Confession. It touches the Christian's relation to the civil magistrate. It touches the question of what laws a Christian commonwealth ought to enact. It touches the interpretation of vast portions of the Pentateuch that the modern reader is tempted either to dismiss as obsolete or to apply with a literalism that ignores the difference between Israel and the nations. And it requires of us a wisdom that is neither the wisdom of the antinomian, who sees nothing of permanent obligation in the judicial law, nor the wisdom of the theonomist, who sees everything. It is a wisdom that distinguishes, as the Divines themselves distinguished, between the particular form and the general equity, between the shadow that passed and the substance that remains.

Scripture Foundation

The judicial laws of Israel are recorded principally in what scholars have long called the Book of the Covenant, the block of legislation extending from Exodus 20:22 through Exodus 23:33 that immediately follows the giving of the Decalogue. Here we find laws governing the treatment of Hebrew slaves, the punishment of violent crimes, the restitution required for theft and property damage, the protection of the vulnerable, and the administration of justice through impartial courts. The Hebrew term most frequently used to designate these laws is mishpatim, "judgments," a word that carries the twin connotations of a judicial ruling and a pattern of righteousness. When Moses declares, "Now these are the judgments which thou shalt set before them" (Exodus 21:1), he is not merely promulgating a civil code. He is setting forth, in the concrete circumstances of the Israelite nation, the kind of justice that reflects the character of the God who is Himself the Judge of all the earth. Consider, as a single example, the law of the goring ox. "If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit. But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death" (Exodus 21:28-29). The law distinguishes, with a precision that modern legal systems might envy, between accidental harm and negligent harm. If the ox had no history of violence, the owner is not culpable for an event he could not have foreseen. But if the ox was known to be dangerous and the owner failed to restrain it, the owner bears criminal liability for the death that results, a liability so serious that it extends to the forfeiture of his own life. Embedded within this ancient statute is a principle of justice that transcends the agrarian economy of ancient Israel: a man is responsible for what he does and for what he negligently fails to prevent, and the degree of his culpability is measured by what he knew or ought to have known. That principle is not peculiar to the Israelite theocracy. It belongs to the general equity of the judicial law, and every civilisation that has abandoned it has descended, sooner or later, into the chaos in which the strong devour the weak without accountability. The same Book of the Covenant contains laws of remarkable tenderness toward the vulnerable. "Ye shall not afflict any widow, or fatherless child. If thou afflict them in any wise, and they cry at all unto me, I will surely hear their cry; and my wrath shall wax hot, and I will kill you with the sword; and your wives shall be widows, and your children fatherless" (Exodus 22:22-24). The sanction is startling in its severity, but the principle it enforces is among the most fundamental duties of any just society: the strong must protect the weak. The widow and the orphan, in the ancient world as in the modern, were the paradigmatic cases of defencelessness. They had no male protector to stand between them and the predator. God Himself assumes the role of their protector, and He threatens the oppressor with death by the sword. The general equity is not difficult to discern: any society that permits the powerful to prey upon the powerless has placed itself under the judgment of the God who hears the cry of the afflicted. The particular mechanism, the sword of Israel's theocratic judiciary, has passed away with the state to which it was given. But the principle that justice requires the protection of the vulnerable is written into the moral order of the universe. Perhaps the most illuminating evidence for the Confession's doctrine comes not from the Old Testament itself but from the apostolic use of the judicial laws in the New. The apostle Paul, writing to the Corinthians, addresses a question about the financial support of ministers, and in doing so he cites, of all things, a statute from the judicial code of Israel. "For it is written in the law of Moses, Thou shalt not muzzle the mouth of the ox that treadeth out the corn. Doth God take care for oxen? Or saith he it altogether for our sakes? For our sakes, no doubt, this is written: that he that ploweth should plow in hope; and that he that thresheth in hope should be made partaker of his hope" (1 Corinthians 9:9-10). The statute Paul quotes is found in Deuteronomy 25:4, embedded among laws concerning criminal punishment, levirate marriage, and honest weights and measures, the very heart of the judicial code. And Paul treats it not as a piece of obsolete legislation from a defunct commonwealth but as containing a principle of permanent validity. The particular form of the law, the ox and the corn, belonged to the agricultural economy of ancient Israel. But the general equity, that the labourer is worthy of his hire, is a principle of natural justice that the apostle deploys, without hesitation, to establish the right of gospel ministers to material support from the congregations they serve. In doing so, Paul provides the church with an inspired model for interpreting the judicial laws. He does not apply the statute literally. He does not insist that every Christian farmer must leave his ox unmuzzled. He discerns, beneath the particular form, the enduring principle, and he applies that principle to a situation that the original statute never contemplated. This is "general equity" in action, the very hermeneutic that the Confession's fourth section commends to the church. Our Lord Himself, in the Sermon on the Mount, exercises the same hermeneutic with respect to one of the most famous of the judicial laws. "Ye have heard that it hath been said, An eye for an eye, and a tooth for a tooth: but I say unto you, That ye resist not evil" (Matthew 5:38-39). The lex talionis, the law of retaliation, was given not as a licence for private vengeance but as a restraint upon it. It limited retribution to strict proportionality, no more than an eye for an eye, and it was entrusted not to the injured individual but to the judges, who were to adjudicate the matter impartially. It was a law for the civil magistrate, not a rule for personal conduct. And when our Lord says, "But I say unto you," He is not abolishing the judicial function of the magistrate; He reaffirms that function elsewhere, most notably in Romans 13:1-4, where Paul declares that the civil ruler "beareth not the sword in vain" but is "the minister of God, a revenger to execute wrath upon him that doeth evil." What our Lord is doing is distinguishing between the sphere of the magistrate and the sphere of the individual disciple. The magistrate may, and must, punish evildoers by the lawful use of the sword. The disciple, in his personal relations, must forego retaliation and overcome evil with good. The judicial law, in its particular form as a statute for the Israelite judiciary, has expired. But the principle that punishment must be proportionate to the offence, a principle that the lex talionis enshrined, continues to inform Christian reflection on the nature of justice, even as the sphere of its application has been clarified by the teaching of our Lord.

What the Divines Meant

When the Westminster Assembly addressed the judicial laws, they were navigating between two errors. On one side stood those who argued that the judicial laws were, like the moral law, perpetually binding upon all nations, the position of certain theocratic Puritans who insisted that the statutes of the Pentateuch ought to be adopted wholesale by the Christian magistrate. On the other side stood those who argued that the judicial laws had been entirely abrogated, leaving the Christian magistrate with no guidance from the Old Testament, or that the magistrate had no legitimate function in a Christian society at all. Against both errors, the Divines deployed a formula of careful theological precision, and its every phrase is weighty with argument. "To them also, as a body politic." The word "them" refers back to the people of Israel, the same people to whom, in the preceding sentence, the ceremonial laws were given. But the qualifying phrase, "as a body politic," marks a crucial distinction. The ceremonial laws were given to Israel as a church under age, a worshipping community in its minority. The judicial laws were given to Israel as a body politic, a civil commonwealth with territorial borders, a judiciary, and the apparatus of government. The distinction is not merely academic; it governs the question of expiration. The ceremonial laws expired because the church reached its majority in Christ and the shadows gave way to the substance. The judicial laws expired because the body politic to which they were given, the theocratic nation of Israel, ceased to exist as a political entity. When the Romans destroyed Jerusalem in AD 70, they were not the agents of divine abrogation; they were the instruments of a historical process that God Himself had ordained, by which the Old Testament theocracy was dissolved and the judicial laws, which had been designed for that particular polity, lost their immediate application. "He gave sundry judicial laws." The word "sundry" acknowledges that the judicial laws constituted a diverse body of legislation, not all of the same kind or authority. Some were direct applications of the moral law, the prohibition of murder received specific statutory form in the laws governing manslaughter and the cities of refuge. Others were applications of the ceremonial law, governing the relationship between the magistrate and the worship of the temple. Still others were positive enactments adapted to the climate, economy, and social conditions of ancient Canaan: the parapet on a flat roof, the inheritance rights of daughters, the year of Jubilee. The word "sundry" signals that the general equity of the judicial laws cannot be ascertained by a one-size-fits-all hermeneutic. Each law must be examined on its own terms, and the principles it embodies must be distinguished from the particular form in which it was given. "Which expired together with the State of that people." The verb "expired" is distinct from the verb "abrogated" that the Divines used of the ceremonial laws in the preceding section. Abrogation is a positive act of repeal; the ceremonies were annulled by the same divine authority that instituted them. Expiration is a cessation of force by the removal of the conditions that gave a law its application. A contract expires when its term is completed. A lease expires when the tenant vacates the premises. So the judicial laws expired when the state to which they were given, the Israelite theocracy, passed out of existence. The Divines did not need to argue that God had positively repealed the statute concerning the goring ox or the law of the cities of refuge. They simply noted that the civil entity for which those laws were designed was no longer extant, and that laws given to a particular body politic cannot bind other bodies politic that do not share the constitution under which those laws were enacted. "Not obliging any other now, further than the general equity thereof may require." Here is the clause upon which everything turns. The judicial laws do not oblige "any other," any nation other than Israel, any civil magistrate other than the Israelite judiciary, in their particular form. The Christian magistrate is not bound to enforce the death penalty for Sabbath-breaking, to require a parapet on every newly built roof, or to establish cities of refuge. But the judicial laws do oblige other nations to the extent that they embody "the general equity thereof," from the Latin aequitas, meaning fairness, that which is naturally right. The statute requiring a parapet on a flat roof was a particular application of the general principle that a man is responsible for preventing foreseeable harm to his neighbour. The statute requiring honest weights and measures was a particular application of the principle that commerce must be conducted with integrity. In every case, the particular form has expired; the general equity remains. This careful formulation reflects the influence of the Reformed scholastic tradition upon the Divines. The threefold division of the law into moral, ceremonial, and judicial was not an invention of the Westminster Assembly. It had been developed by Calvin, refined by Ursinus and the Heidelberg Catechism, and systematised by the high orthodox theologians of the seventeenth century. What the Divines contributed was a formulation at once precise enough to guide the scrupulous conscience and flexible enough to allow for the prudential judgment that the application of general equity always requires. They gave the church a principle, and they trusted the Spirit-illumined wisdom of Christian magistrates, ministers, and laymen to apply it.

Theological Depth

The Reformed tradition's reflection on the judicial law has always been closely bound up with its doctrine of the civil magistrate, and no figure in that tradition has explored the connection with greater urgency than Samuel Rutherford. Writing in the midst of the Scottish crisis of the 1640s, Rutherford argued in Lex Rex, a title that deliberately reverses the absolutist claim that the king is the law, that all legitimate civil authority is derived from God and bounded by His revealed will. The judicial laws of Israel, Rutherford maintained, were not a blueprint for every civil government, but they were a pattern, a display, in the concrete circumstances of one nation, of the kind of justice that God approves. The Christian magistrate who ignores that pattern, Rutherford warned, is like a builder who discards the architect's model and then wonders why his structure is crooked. He may not be bound to replicate every detail of the Mosaic civil code, but he is bound to govern according to the principles of righteousness and equity that the judicial laws embody, and he will find no better instruction in what those principles require than the statutes that God Himself delivered at Sinai. Rutherford's argument gains particular force when applied to the question of proportional punishment, one of the most persistent themes of the judicial legislation. The lex talionis, "life for life, eye for eye, tooth for tooth, hand for hand, foot for foot" (Deuteronomy 19:21), has often been dismissed by modern readers as primitive and vindictive. But the Reformed tradition, following the medieval scholastics before it, recognised that the lex talionis was not a licence for vengeance but a restraint upon it. In the ancient Near Eastern legal codes that surrounded Israel, most famously the Code of Hammurabi, punishments were often grossly disproportionate to the offence, and they varied according to the social status of the victim. A nobleman who killed a commoner might pay a fine; a commoner who killed a nobleman might be executed. The lex talionis established a principle of strict proportionality that applied equally to all: one eye, no more and no less, for one eye; one life, and only one life, for one life. It was a charter of equality before the law, and it restrained the impulse toward escalating vengeance that had turned the blood feuds of the ancient world into cycles of destruction lasting for generations. The general equity of this principle, that punishment must be neither more nor less than the offence deserves, and that the law must not discriminate between rich and poor, does not expire with the Israelite theocracy. It stands as a permanent witness against every legal system that treats the powerful with leniency and the powerless with severity. Thomas Aquinas, whose treatment of the judicial law profoundly influenced the Reformed tradition even when the Reformers disagreed with him on other matters, introduced a distinction that would prove indispensable to the Divines' formulation. The Old Testament law, Aquinas argued, contained judicial precepts that were "determinations" of the natural law, concrete applications, adapted to the particular circumstances of Israel, of principles that are known, at least in their general outline, to all men by the light of nature. The natural law teaches that evildoers should be punished. It does not teach, with the precision of a statute, what punishment should attach to which crime. That determination belongs to human law, and it may vary from nation to nation according to the diversity of circumstances. The judicial laws of Israel were determinations of this kind, applications of natural law principles to the specific situation of the covenant people. And because they were determinations, not the natural law itself, they could expire with the state for which they were determined, while the natural law principles they embodied continued to bind all men in all ages. The Divines' language of "general equity" is, in effect, the language of natural law applied to the judicial legislation of Israel, and the careful reader of the Confession will recognise that the same moral realism that undergirds the first chapter's teaching on the light of nature also undergirds this fourth section's teaching on the judicial law. George Gillespie, a Scottish commissioner to the Assembly and one of its ablest theologians, applied this principle in a direction few subsequent commentators have matched. Gillespie argued that the judicial laws could be divided into three categories, each with a different degree of continuing obligation: those that were applications of the moral law (retaining their equity in full), those that were applications of the ceremonial law (their equity expiring with the ceremonies themselves), and those that were adaptations to Israel's climate, economy, and social organisation (retaining an analogical force as instructive models). Gillespie's analysis has never been formally adopted by any Reformed confession, but it represents the kind of careful discrimination that the Confession's language of "general equity" invites, warning against both the wooden literalism that would reinstitute the Jubilee by act of Parliament and the lazy dismissal that would find nothing of permanent relevance in the judicial law whatsoever. When we turn to the larger theological architecture of the Confession, we find that the doctrine of the judicial law serves a function that is easily overlooked. It establishes, in the space of a single sentence, that the civil magistrate has a legitimate sphere of authority that is neither identical with the church's authority nor independent of God's revealed law. The Anabaptist tendency, which had resurfaced in England in the radical sectarianism of the 1640s, denied that the civil magistrate had any role in the kingdom of Christ, which was purely spiritual. Against this error, the Divines' retention of the general equity of the judicial law asserts that the civil order is not autonomous; it is answerable to the same God who gave the judicial laws to Israel, and it will be judged by the same standard of righteousness that those laws, in their particular form, embodied. At the same time, the Confession's insistence that the judicial laws have expired in their particular form guards against the opposite error, the theocratic impulse that would reconstitute the Israelite commonwealth in the soil of an earthly kingdom and invest the civil magistrate with the power to enforce the first table of the Decalogue by the sword. The balance is carefully maintained: the magistrate is not a minister of the gospel, but neither is he a law unto himself; he is bound by the general equity of God's revealed justice, and he will be held to account for how he has administered the trust that God has placed in him.

Puritan Application

First, learn to read the judicial laws not as a dead legal code but as a school of justice in which the character of God is displayed in the concrete circumstances of human society. The modern Christian who opens the book of Exodus and encounters, after the grandeur of the Decalogue, a series of statutes about oxen, slaves, and property boundaries is tempted to conclude that the text has descended from the sublime to the trivial. The temptation must be resisted. The God who spoke from the fire on Sinai is not a God who is interested only in the inward dispositions of the heart and indifferent to the outward ordering of society. He is the Lord of the ox and the field, of the loan and the pledge, of the court and the gate. And the justice that He requires is a justice that touches the most ordinary transactions of daily life, because it is in those transactions that righteousness is either honoured or despised, and it is in those transactions that the powerful are tempted to oppress the weak and the rich to defraud the poor. When you read the law of the goring ox, do not ask only what the statute required of an Israelite farmer. Ask what it reveals about the God who cares for the safety of the passerby, who holds men accountable for what they knew or should have known, and whose justice penetrates to the negligence of the heart as well as the violence of the hand. The judicial laws are revelation before they are legislation, and the man who reads them as Scripture rather than as a museum piece will find in them the same God whose mercy and justice meet at the cross. Second, because the judicial laws have expired in their particular form, refuse the theonomic temptation to treat the Mosaic civil code as a blueprint that can be transferred without remainder to the modern state. The theonomist is right to insist that the judicial laws are the Word of God, possessing an authority no human legal code can claim. And he is right that the general equity of those laws continues to bind the conscience. But he errs when he fails to distinguish between the particular form and the general equity, between the statute given to a single nation in a single era and the moral truth it was designed to express. The Israelite theocracy was unique, civil, ceremonial, and moral laws administered under the immediate kingship of Jehovah. That institution has passed away, and no nation on earth occupies the same position in redemptive history. The Christian who would reinstitute the death penalty for Sabbath-breaking by act of Parliament has forgotten that the civil magistrate under the new covenant does not bear the sword in defence of the first table of the law. The magistrate's authority extends to the preservation of public order and the punishment of offences against the second table, those duties men owe to one another. Third, and yet, because the general equity remains, refuse with equal firmness the antinomian temptation to treat the judicial laws as having nothing to teach the modern state at all. The secularist who insists that the civil law must be purified of every trace of biblical influence is, whether he knows it or not, insisting that the civil magistrate must govern without reference to the only standard of justice that has its origin in the character of God. Every human legal system rests, implicitly or explicitly, upon some conception of justice, and every conception of justice that is not drawn from the revelation of God is drawn, ultimately, from the fallen reason of fallen men. The result, as every page of history attests, is legal systems that favour the powerful, that punish the powerless, that define justice as the interest of the stronger, and that descend, in times of crisis, into the kind of barbarism that the judicial laws were given to restrain. The Christian who understands the general equity of those laws will be the most thoughtful and principled defender of the rule of law in whatever nation he finds himself, not because he imagines that the Mosaic civil code can be enacted by legislative fiat, but because he knows that the principles of proportionality, impartiality, and the protection of the vulnerable that the judicial laws embody are the only foundation upon which a just legal order can be built. Fourth, let the doctrine of general equity shape the way you pray for those in authority. The apostle commands that "supplications, prayers, intercessions, and giving of thanks, be made for all men; for kings, and for all that are in authority" (1 Timothy 2:1-2), and he gives as the purpose of such prayer "that we may lead a quiet and peaceable life in all godliness and honesty." But the Christian who has absorbed the teaching of the Confession will pray for the magistrate with a specificity that goes beyond the general petition for peace. He will pray that the magistrate would govern according to the principles of equity that the judicial laws enshrine: that he would punish evildoers and protect the innocent, that he would not pervert judgment for a bribe, that he would remember the widow and the orphan and the stranger within the gates, that he would administer justice without respect of persons. He will pray that the legal system under which he lives would increasingly reflect the righteousness and mercy that the judicial laws displayed in their particular form, not because he expects the kingdoms of this world to become the kingdom of our Lord before His return, but because he knows that civil righteousness, however imperfect, is a gift of common grace that restrains the outbreak of evil and makes possible the quiet and peaceable life that the gospel requires for its propagation. Fifth, let the distinction between the particular form and the general equity inform your reading of the whole Old Testament. The Christian who approaches the law of Moses with the hermeneutic commended by the Confession will find that books that once seemed impenetrable, Leviticus, Numbers, Deuteronomy, become luminous with theological and moral instruction. He will not ask, "Must I refrain from eating shellfish?" That question the apostolic council in Acts 15 definitively answered in the negative. He will ask, "What does the distinction between clean and unclean animals teach me about the holiness of God and the separation of His people from the defilements of the world?" He will not ask, "Must I build a parapet on my roof?" That question has no application to a man who does not possess a flat-roofed house in the ancient Near East. He will ask, "What responsibility do I bear for preventing the foreseeable harms that my property or my conduct may cause to my neighbour?" The letter of the judicial law has expired. But the Spirit who inspired it has not withdrawn His illumination from it, and the reader who approaches it in the company of the apostles, as Paul approached the statute of the muzzled ox, will find in it "doctrine, reproof, correction, and instruction in righteousness," until the day when the Judge of all the earth appears and every merely human legal code gives way to the perfect justice of the new creation.

Prayer

O Lord God, the Judge of all the earth, who dost righteousness and judgment in all Thy ways, we bless Thee for the revelation of Thy justice that Thou didst entrust to Thy servant Moses at Sinai. We bless Thee that Thou didst declare the great principles of the moral law and didst condescend to show Thy people how those principles were to be applied in the courts and the marketplaces, in the fields and the gates, in the transactions between neighbour and neighbour that fill the hours of every day. Thou hast taught us that righteousness belongs to the sanctuary as well as to the marketplace, that justice is not an abstraction but a pattern of conduct that touches the ox and the roof and the boundary stone, and that the God who is worshipped in the temple is the same God who presides over the court and holds the magistrate to account for every verdict he renders. We thank Thee that the Lord Jesus Christ, in whom all the types and shadows of the old covenant find their substance, has fulfilled the righteousness that the law demanded and satisfied the justice that the law threatened. And we thank Thee that, though the particular institutions of the Israelite theocracy have passed away, the general equity of Thy judicial laws remains, a permanent witness against every legal system that perverts judgment, oppresses the poor, or declares the guilty innocent for a bribe. Grant wisdom, we beseech Thee, to all who bear the office of the civil magistrate. Cause them to govern not according to the shifting currents of popular opinion but according to the fixed principles of Thy righteousness. Restrain them from the arrogance that imagines that human law is answerable to no higher authority than the will of the legislator. Make them mindful that every judgment they render and every statute they enact will be weighed in the balances of Thy justice on the day when the Judge of all the earth shall judge them. And grant wisdom to Thy church, that she may know how to live under whatever civil authority Thou hast placed over her, rendering to Caesar the things that are Caesar's and to Thee the things that are Thine, obeying the magistrate in all things lawful, bearing faithful witness against every law that contradicts Thy Word, and praying without ceasing for the peace of the city in which Thou hast placed her, knowing that her true citizenship is in heaven, from whence she awaits a Saviour, the Lord Jesus Christ, who shall change her lowly body and fashion it like unto His glorious body, according to the working whereby He is able to subdue all things unto Himself. Amen.