The Divine Law of Political Israel Expired: General Equity
About 1970 claims began to be published that a perpetual obligation remains in many Old Testament ordinances which classical Reformed theologians had regarded as expired under the New Testament. The “Christian Reconstruction” movement seeks to conform modern society to this reassertion of certain laws given to Old Testament Israel. One of the tenets of Christian Reconstruction is theonomy, the belief that the Old Testament civil law is morally binding today. This essay will examine the diversity between theonomy and the classical Reformed tradition. Particular attention will be given to the Westminster Confession of Faith and Catechisms as representative of classical Reformed theology; our reference will be to the original text of the Confession (1646), without the eighteenth-century American revisions respecting the civil magistrate.
Important Issues at Stake
There are important practical implications in the question whether theonomy is consistent with the teaching of the Westminster standards. It is the intended function of the Westminster Confession and Catechisms to define both the system of doctrine and the ethics found in Scripture.
John Murray argued that the system of truth in the Westminster standards encompasses ethics as well as doctrine. “When the formula refers to the system of doctrine taught in the holy Scriptures and to the Confession and Catechisms as containing this system, it will surely be granted that the system includes ethics as well as what is sometimes, more specifically, called doctrine. The space devoted to ethics in the subordinate standards, especially in the Catechisms, would permit no other conclusion. And, of course, to exclude ethics from the system of doctrine taught in Scripture would be preposterous. Now, on the assumption that the formula involves subscription to the system of doctrine contained in the Confession and Catechisms, . . . I submit that the teaching respecting the Sabbath and its continuing obligation belongs integrally to the system of doctrine set forth in these documents. More specifically, this teaching belongs to the ethic of these standards.”(1)
A church must have consensus about the ethic in its system of doctrine, in order for the church to operate its pastoral oversight and discipline. If there are rival ethics, either the one is allowed to displace the other, or there will be strain such as comes to churches which do not have consensus as to a system of doctrine. Indeed, the presence of rival ethics represents a breakdown in agreement about the church’s system of doctrine.
Theonomy’s emergence as a rival ethic was indicated when its primary authors condemned as antinomian the perspective of standard Reformed writers such as John Calvin, Charles Hodge and John Murray.(2) The basic reason for the charge of antinomianism is the teaching of these writers that much in the Mosaic judicial law was part of the middle wall of partition now removed from between Jews and Gentiles, and that only those elements of judicial law are obligatory which are found in the general ethical teaching of Scripture. Theonomists argue that these representatives of the Reformed faith have improperly dismissed much which is of abiding moral obligation, and which needs only some adaptation from its setting in the ancient world in order to be applied to modern society. In other words, theonomy expands the range of moral obligation. As we shall see, there is a difference both theoretically, as to the test for discovering what is ethically binding for the Christian, and also practically, in the conclusions drawn from the two competing theories, the classical and the Reconstructionist.
The arrival of a new system of doctrine or a new ethic is often heralded by its giving a new definition of an old error which it opposes, charging that the old error is to be found in the basic premises of those who hitherto have been the primary critics of the error.(3) It is true that Christian Reconstruction has presented itself as the proper heir to the Reformed Church’s historic opposition to an antinomian dispensationalism and to the Anabaptist tradition, which find less relevance in Old Testament patterns than does the Reformed Church. However, much of Christian Reconstruction’s critique also stands in opposition to classical Reformed teaching respecting what is of abiding relevance in the Old Testament. The classical Reformed hermeneutic, which has resisted dispensationalism on the one side, has been assailed in our generation by a new tradition moving away in the other direction, and ascribing permanence to much in the Old Testament which the classical Reformed tradition has held was preparatory to the coming of Christ.(4)
The Teaching of the Westminster Confession
In examining several points of variance between theonomy and the doctrine of the Westminster Confession of Faith, we may begin by citing the passage in the Confession which is most relevant, namely, Chapter XIX, “Of the Law of God,” and noting the Assembly’s proof texts:
“I. God gave to Adam a law, as a covenant of works, by which He bound him and all his posterity to personal, entire, exact, and perpetual obedience(5) . . . . . II. This law, after his fall, continued to be a perfect rule of righteousness, and, as such, was delivered by God upon Mount Sinai, in ten commandments(6) . . . . . III. Beside this law, commonly called moral, God was pleased to give to the people of Israel, as a church under age, ceremonial laws, . . . partly of worship,(7) . . . and partly holding forth divers instructions of moral duties.(8) All which ceremonial laws are now abrogated, under the new testament.(9) IV. 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.(10) V. The moral law doth for ever bind all, as well justified persons as others, to the obedience thereof;(11) and that, not only in regard of the matter contained in it, but also in respect of the authority of God the Creator, who gave it:(12) neither doth Christ, in the Gospel, any way dissolve, but much strengthen this obligation.”(13)
The Confession affirms that the law given by God to Adam at creation is the moral law,(14) and that this is the law which was delivered in the ten commandments, and which forever binds all men and is not dissolved under the Gospel. Beside this law, the ceremonial and judicial laws were given by God to a particular group, namely the people of Israel, considered as a church under age and as a body politic. With the close of the preparatory period in redemptive history, the ceremonial laws were abrogated and the judicial laws expired. At four points in the passage, the Confession identifies the moral law as the mandate which permanently binds and obliges. The presence of moral elements in the ceremonial and judicial laws is acknowledged, though much in the ceremonial and judicial laws is other than moral; part of what the ceremonial laws held forth was instruction of moral duties, and there is an element of general equity in the judicial laws which continues to oblige. Immediately after the two paragraphs in which consideration is given to the temporary role of the ceremonial and judicial laws in redemptive history, there is a paragraph which contrasts the undissolved obligation of the moral law, and which cites Matt. 5:17-19 as proof of that proposition, indicating that the Westminster Assembly regarded Matt. 5:17-19 as referring to the moral law as distinct from the ceremonial and judicial laws.
In sum, the Confession 1) makes a threefold distinction of moral, ceremonial and judicial law, 2) characterizes the ceremonial and judicial laws as appointments for a given period in redemptive history, and 3) asserts that elements of the ceremonial and judicial laws remain obligatory only insofar as they embody the contents of the moral law which was given already at creation, republished in the ten commandments, and whose authority was strengthened under the Gospel.
Theonomy makes a number of claims which are difficult to reconcile with the teaching of the Confession.(15) 1) Theonomy denies the threefold distinction of moral, ceremonial and judicial laws, replacing it with a twofold distinction of moral law and “restorative” (or ceremonial) law.(16) Judicial law then is subsumed under the moral law and is held to carry the permanent obligation that belongs to all of the moral law.(17) 2) Instead of the confessional hermeneutic that regards the judicial law as such as having expired, theonomy claims that each judicial ordinance is binding today if it has not been explicitly retracted in the New Testament.(18) 3) Theonomy regards the ten commandments as ambiguous, and urges that the extensive and detailed provisions of the judicial law are necessary for discovering the meaning of the decalogue. The exposition of the moral law is left dependent upon the judicial laws, which become a primary standard for defining moral obligation.(19) By contrast, the confessional hermeneutic brings the judicial laws under examination by the moral law, esteeming the general moral law teaching in Scripture of sufficient clarity to function as the arbiter of perpetual equity in the judicial laws. Elements of the judicial law which go beyond the requirements of the moral law are not to be held as still obligatory. 4) Theonomy rejects the concept that a natural law given at creation embodies an obligation that is narrower and more permanent than that of the judicial laws given later to Israel.(20) 5) Theonomy regards the judicial laws as largely of universal application, rather than having respect to a particular nation and period in redemptive history for which they were given,(21) despite the Confession’s affirmation that the judicial laws as such expired together with the state of that particular people. 6) Theonomy teaches that the Mosaic ceremonial and judicial laws continue to be obligatory, and that we are to regard only the manner of observing them as different from the Old Testament.(22)
Only the Moral Law Is Permanently Binding
We have noted the Confession’s sustained contrast between the permanence of the moral law and the transitory obligation attaching to the ceremonial and judicial laws. This is underscored by a contemporaneous statement from Anthony Burgess (d. 1664), one of the Westminster divines who sat on the committee which prepared material for the Confession’s chapter on the law of God.(23) The heading was referred to that committee on November 18, 1645, the Assembly completed its work on the chapter on September 25, 1646,(24) and on October 12 Burgess published his Vindiciae Legis: or, a Vindication of the Moral Law and the Covenants, from the Errors of Papists, Arminians, Socinians, and more especially, Antinomians,(25) a series of thirty lectures preached in London during the Assembly.(26) No divine at the Assembly, with the exception of Samuel Rutherford and Thomas Gataker, wrote as extensively on the law of God and antinomianism.
Burgess remarked on the sense in which the moral law differs from the ceremonial and judicial laws, and addressed the question of “why it’s called the moral law.” Burgess wrote, “Now the whole body of these laws is, according to the matter and object, divided into moral, ceremonial, and judicial. We will not meddle with the queries that may be made about this division. We may, without any danger, receive it, and that law which we are to treat upon is the moral law. And here it must be acknowledged, that the different use of the word moral, hath bred many perplexities; yea in whatsoever controversy it hath been used, it hath caused mistakes. . . . . Now in this present doubt, howsoever the word moral beareth no such force in the notation of it . . . as to denote that which is perpetual and always obliging; yet thus it is meant here when we speak of a thing moral, as opposite to that which is binding but for a time.”(27) For Burgess, the name by which we are to distinguish the moral law from the ceremonial and judicial laws is a term used in the sense of that which alone is permanently binding.(28) This same sense of perpetual duty is evident in the use of the word moral in Larger Catechism 93, and in the Confession, XXI.vii.
We shall examine the confessional teaching about the unique permanence of the moral law, by considering the threefold distinction in the law, the significance of general equity, the role of natural law, and the means of discovering which elements of the judicial law possess equity.
The Threefold Distinction in the Law
A central discrepancy between the Westminster Confession and theonomy is with respect to the Confession’s threefold distinction of moral, ceremonial and judicial law. The Confession uses this distinction to teach that the moral law first given at creation is uniquely of permanent obligation. By contrast, theonomy claims a twofold distinction of moral and restorative (or ceremonial) law. Theonomy regards judicial law as but an expression and illustration of moral law, with which it is essentially one, and hence sharing the quality of permanent moral obligation.(29)
Some theonomists indeed speak of a distinction between the moral and judicial laws, but it is not the same distinction made in the Confession. The distinction made by some theonomists has to do with the literary forms in which the two are cast, the moral law giving a summary form such as the ten commandments, and judicial law providing a detailed illustration of the contents of the moral law.(30)
The theonomists’ denial of the more substantial distinction made by the Confession is evident in that they do not appeal to the moral law as the standard by which to separate what remains obligatory in the judicial law from what does not. In the Confession’s hermeneutic, the moral law is the measure for identifying the moral element in the ceremonial and judicial laws. Accordingly, whatever in the Mosaic judicial laws was a sufferance of the hardness of men’s hearts, and thus came short of the righteousness in the moral law, has no enduring relevance. Moreover, in the large extent to which Israel was placed under added restriction with a view to preserving them until the coming of Christ, civil requirements which go beyond the general ethical teaching found elsewhere in Scripture have no enduring obligation.
Theonomists deny this discriminating function to the moral law. They will not accept that the judicial laws should be subjected to a superior standard as to what constitutes righteousness, because theonomists seek the standard of righteousness in the judicial laws themselves.(31) Theonomists attempt to have the judicial laws speak for themselves as to the essential principles in those laws,(32) and are persuaded that these principles are a permanent obligation for all societies. Discrimination as to what endures from the Mosaic judicial law is largely the task of translating the allegedly binding illustrations in the judicial law from an ancient setting into a modern one.(33) When theonomists deny to the moral law the role of an independent rule and supreme judge as to what is of remaining obligation in the judicial laws, there is a clear indication of theonomists’ commitment to the essential unity of moral law and judicial law, and hence the functional denial of the Confession’s threefold distinction. This discrepancy respecting a threefold or twofold distinction of the law exhibits an underlying divergence in the hermeneutical commitments at work in each system. Our standards give confessional standing to the threefold distinction, as a safeguard against encroaching errors with respect to ethics.
A hallmark of theonomy is the assertion that the penal sanctions of the Mosaic judicial law, even those specified nowhere else in divine revelation, are obligatory today.(34) The rationale for this position is that the judicial law itself is but a department of the moral law, and carries the permanent obligation that belongs to all of the moral law; this entails rejection of the threefold distinction of the law.(35) If the penal sanctions are not found in sources of divine revelation outside the judicial law, there is no foundation for claiming that these penalties rise above the expiration that belongs to the judicial law as such. The suggestion, that penalties unrevealed outside the Mosaic economy must be used if any other society is to administer justice,(36) has no warrant if the judicial law is not morally binding; in other words, the suggestion is based on another hermeneutic than the Confession’s threefold distinction of the law.
The Confession uses the term general equity to identify the element in the judicial laws which is of enduring obligation. The meaning of this term is evident from the chapter in which it appears. There is an equity or righteousness which on four other occasions in this chapter is said to still oblige, amidst all the changes in redemptive history. That equity is the moral law, which 1) was first given at creation, 2) was afterwards delivered in the ten commandments, 3) is distinguished from the ceremonial and judicial laws as such, 4) is always backed by the authority of the Creator, and 5) is strengthened by Christ in the Gospel: “God gave to Adam a law, . . . by which He bound him and all his posterity to personal, entire, exact, and perpetual obedience . . . . . This law, after his fall, continued to be a perfect rule of righteousness . . . . . Beside this law, commonly called moral, [are the ceremonial and judicial laws] . . . . . The moral law doth for ever bind all . . . to the obedience thereof; and that, not only in regard of the matter contained in it, but also in respect of the authority of God the Creator, who gave it: neither doth Christ, in the Gospel, any way dissolve, but much strengthen this obligation.”
Confirmation that “general equity” signifies the moral law is furnished by an examination of the earlier Reformed and contemporary Puritan literature which forms the background and context for the writing of the Confession. These writers regarded equity as identifiable by reference to well-known standards. In the classical Reformed tradition, equity is the righteousness of the moral law, which is 1) embodied in a natural law binding upon all men as creatures under the authority of the Creator, and 2) common to moral teaching found in the Scriptures as a whole. We shall see that Calvin and the Puritans did not allow the judicial laws to define equity. Conformity to the moral law was the standard against which these writers reviewed the judicial laws and isolated the elements of perpetual equity in them. Outstanding statements of this hermeneutical perspective were given by Calvin, William Ames and Francis Turretin, and many others gave briefer expression to the same teaching.
Calvin (1509-64), writing in his Institutes of the Christian Religion, gives the following definition of what belongs to equity in the judicial laws: “The judicial law, given to them for civil government, imparted certain formulas of equity and justice, by which they might live together blamelessly and peaceably. . . . . The form of their judicial laws, although it had no other intent than how best to preserve that very love which is enjoined by God’s eternal law, had something distinct from that precept of love. Therefore, as ceremonial laws could be abrogated while piety remained safe and unharmed, so too, when these judicial laws were taken away, the perpetual duties and precepts of love could still remain.
“But if this is true, surely every nation is left free to make such laws as it foresees to be profitable for itself. Yet these must be in conformity to that perpetual rule of love, so that they indeed vary in form but have the same purpose. . . . .
“What I have said will become plain if in all laws we examine, as we should, these two things: the constitution of the law, and the equity on which its constitution is itself founded and rests. Equity, because it is natural, cannot but be the same for all, and therefore, this same purpose ought to apply to all laws, whatever their object. Constitutions have certain circumstances upon which they in part depend. It therefore does not matter that they are different, provided all equally press toward the same goal of equity.
“It is a fact that the law of God which we call the moral law is nothing else than a testimony of natural law and of that conscience which God has engraved upon the minds of men. Consequently, the entire scheme of this equity of which we are now speaking has been prescribed in it. Hence, this equity alone must be the goal and rule and limit of all laws.
“Whatever laws shall be framed to that rule, directed to that goal, bound by that limit, there is no reason why we should disapprove of them, howsoever they may differ from the Jewish law, or among themselves.”(37)
Theodore Beza (1519-1605), Calvin’s contemporary at Geneva, employs the expression general equity to define the element of justice, derived from natural law, which belongs to all civil laws, despite the variation between the political constitutions of different nations. “If again someone were to raise the objection that public law referring to the constitution of the people or nation . . . differs widely from the law of nature common to all nations, I shall concede that this is true indeed in certain matters, but with this limitation that that entire distinction is connected with circumstances which cannot prevent general fairness and equity [generalis illa aequitas et epieicheia] from so far remaining steadfast and invariable that every polity acting in violation of it – as for example if undisguised impieties, robberies and similar crimes both against God and against the law of nations and good morals were to meet with approval – should be utterly condemned and cast off.”(38)
Elsewhere, in arguing that the civil magistrate should punish heresy, Beza applied to the political laws of Moses the distinction between a political constitution and natural or general equity. Beza defends the laws of ancient Rome, saying, much as Calvin did, that these laws and those of Moses “were adapted to the same goal of natural equity.” When the political laws of Moses embody natural equity, which rises above the special circumstances of one nation, to that extent they are binding. But though the magistrate may learn much from the Mosaic law because of the natural equity in it, he is at liberty to depart from such things as the Mosaic penal sanctions when the circumstances of his society dictate. The Mosaic penal sanctions are not permanent obligations. “Although we do not hold to the forms of the Mosaic polity, yet when such judicial laws prescribe equity in judgments, which is part of the decalogue, we, not being under obligation to them insofar as they were prescribed by Moses to only one people, are nevertheless bound to observe them to the extent that they embrace that general equity which should everywhere be in force. . . . . The Lord commands that a deposit be returned, and that thieves be punished. . . . . Because it follows natural equity, and expounds that perpetual precept of the decalogue, Thou shalt not steal, to this extent all are bound to fulfill them both. The thief is sentenced to make restitution for the theft, sometimes twice as much, sometimes four times as much . . . . . This penalty is purely political, and it binds the one nation of the Israelites, to whom alone it was adapted. Therefore it is permitted for the magistrate, in his exercise of sovereignty and for definite and good causes, to prescribe a more severe manner of punishment . . . . . And to be sure, if anyone compares several of the laws of the Greeks, and many of the laws of the Romans, with the Mosaic, he will find a similarity among them in establishing penalties, so that it is sufficiently plain that all were adapted to the same goal of natural equity.”(39)
The expression general equity is also found in a treatise on conscience by the English Puritan William Perkins (1558-1602). Perkins uses the phrase to identify the element in the judicial laws which is of enduring obligation. The standard to which Perkins appeals is conformity to the law of nature, which embodies the moral law: “Again, judicial laws, so far forth as they have in them the general or common equity of the law of nature are moral; and therefore binding in conscience, as the moral law.”(40)
Perkins says that the moral law is that which forever binds all men: “Moral law . . . is contained in the Decalogue or ten commandments; and it is the very law of nature written in all men’s hearts . . . in the creation of man: and therefore it binds the consciences of all men at all times . . . . .”(41) The other laws given through Moses do not carry this permanent obligation: “Judicial laws of Moses . . . . . were specially given by God, and directed to the Jews; who for this very cause were bound in conscience to keep them all . . . . . But touching other nations and specially Christian commonwealths in these days, the case is otherwise.”(42)
Perkins speaks of a particular equity prescribed for a particular people in the special circumstances of Old Testament Israel, and a common equity drawn from the law of nature and which therefore is common to all men. That element in the judicial laws which partakes of this common equity still binds: “Therefore the judicial laws of Moses according to the substance and scope thereof must be distinguished . . . . . Some of them are laws of particular equity, some of common equity. Laws of particular equity, are such as prescribe justice according to the particular estate and condition of the Jews’ Commonwealth and to the circumstances thereof . . . . . Of this kind was the law, that the brother should raise up seed to his brother, and many such like: and none of them bind us, because they were framed and tempered to a particular people. Judicials of common equity, are such as are made according to the law or instinct of nature common to all men: and these in respect of their substance, bind the consciences not only of the Jews, but also of the Gentiles: for they were not given to the Jews as they were Jews, that is, a people received into the Covenant above all other nations, brought from Egypt to the land of Canaan, . . . but they were given to them as they were mortal men subject to the order and laws of nature as all other nations are.”(43) For Perkins, common equity is the conformity to the law of nature found in some of the judicial laws.
Perkins’ successor in the pastorate of St. Andrew’s, Cambridge, was another influential Puritan, Paul Baynes (d. 1617), whose commentary on Ephesians was posthumously published in London in the same year that the Westminster Assembly was called. Commenting on Eph. 2:15 and the middle wall of partition between Jews and Gentiles, Baynes remarked on what endures in the judicial laws. As with Perkins, the rule is concurrence with the moral law, set forth in the law of nature: “For the first, we are free from them as ordinances political delivered; they bind us, . . . as the perpetual equity of God, agreeable to the law of nature and moral, is in them . . . . .”(44)
Similarly, Samuel Bolton (1606-54), a Puritan pastor in London during the Westminster Assembly, and later the vice chancellor of Cambridge University, uses the word moral to identify the element of perpetual obligation in the judicial law, and identifies the “common and general equity” of the judicial law as that which is shared with natural law: “Secondly, for the judicial law, which was . . . an ordinance containing the precepts concerning the government of the people in civil things. 1. That there might be a rule of common and public equity. 2. That they might be distinguished from others. 3. That the government of Christ might be typified. And so here as this was typical of Christ, so far it is ceased;(45) but that which is of common and general equity remains still in force. It is a maxim: Those judgments which are common and natural, are moral and perpetual.”(46)
William Gouge (1575-1653) was a member of the Westminster Assembly. During the preparation of the Confession’s chapter on the law, the Assembly appointed a committee to consider propositions “about the meaning of the description of ceremonial and judicial” laws, and Gouge was made a member of the committee.(47) In his folio commentary on Hebrews, Gouge reflects on the ordinance of taking tithes, and draws a correspondence between its various features and the threefold distinction of the law. Gouge uses the term general equity to identify the element which corresponds to the moral law, in distinction from the ceremonial and judicial laws. “This was it, which is here said to be according to the law: and that the judicial, ceremonial and moral law. 1. By the judicial law the Levites had not their portion in Canaan for their inheritance, as other tribes had: therefore in lieu thereof, by the said law they had the tenth of the rest of the people. 2. The holy services which they performed to the Lord for the people were ceremonial. Therefore the recompence given was by a like law. 3. The general equity that they who communicate unto us spiritual matters should partake of our temporals, and that they who are set apart wholly to attend God’s service should live upon that service, is moral.”(48)
As a Scottish commissioner to the Westminster Assembly, Samuel Rutherford (1600-61) sat with the drafting committee which bore primary responsibility for the text of the Westminster Confession.(49) His Free Disputation Against Pretended Liberty of Conscience was published three years after the Confession was completed. In defending the role of the civil magistrate in suppressing heresy, Rutherford refers often to the question whether there is an enduring obligation in the judicial laws, and in this connection he uses the term equity in the same way as do the Genevans and the English Puritans. Rutherford argues that the practice of magistrates must rest upon a broader justification than the Mosaic judicial laws. Apostolic doctrine and the law of nature hold forth a common moral equity that defines what remains pertinent in the judicial laws. This common equity requires magistrates to punish moral offences, but it will not sustain an appeal to the specific penalties in the judicial laws.
“Judicial laws may be judicial and Mosaical, and so not obligatory to us, according to the degree and quality of punishment, such as in Deuteronomy 13, the destroying the city, and devoting all therein to a curse; we may not do the like in the like degree of punishment, to all that receive and defend idolaters and blasphemers in their city. And yet that some punishment by the sword be inflicted upon such a city, is of perpetual obligation; because the magistrate bears the sword to take vengeance on ill doers, and so on these that are partakers of his ill deeds, who brings another gospel, I John 5:10. . . . . Because the slaying of man, woman, infant, and suckling, ox and sheep, was temporary, and cannot have a perpetually obligatory ground in the law of nature or natural justice obliging us. . . . . No man but sees the punishment of theft is of common moral equity, and obligeth all nations, but the manner or degree of punishment is more positive: as to punish theft by restoring four oxen for the stealing of one ox, doth not so oblige all nations, but some other bodily punishment, as whipping, may be used against thieves.”(50)
Rutherford separates the temporary aspect of Israel’s war against the Canaanites from the aspect which can be supported by the moral equity in natural law: “For our divines strongly argue from the moral equity, and the law of nature warranting Joshua to make war with the Canaanites in the Old Testament, to prove the lawfulness of wars under the New Testament upon the same moral equity, as Joshua 11:19-20. Those that refused to make peace with Israel, and came against Israel in battle, against those Israel might raise war, by the law of nature in their own defence. . . . . But the war, tali modo, to destroy utterly young and old, cattle, and all they had, was from a ceremonial and temporal law peculiar to the Jews, because God would have his church neither enriched by their goods, nor to make covenants, and marriages with them, or to live in one society with them, nor to see their groves, lest they should be ensnared to follow their religion and strange gods.”(51)
What Perkins called “general or common equity” and Rutherford termed “common moral equity” is that element in the judicial laws which is shared with the law of nature and with the general teaching of Scripture about morals, and hence can be discovered in these other sources.(52) In other words, the only element in the judicial law which rises above temporary obligation is that which also belongs to other sources of divine revelation about ethics. Because general equity is known from these other sources, it can be recognized when it is present in the judicial law of Moses.
When equity is spoken of as “general or common” to several members of the same class, the meaning of the word general is not distant from the Latin word generalis from which it is derived. The connotation of the Latin word is especially pertinent because the classical Reformed divines read, spoke, wrote and thought in Latin, the language in which university instruction was still delivered at the time of the Westminster Assembly. The Oxford English Dictionary comments on the sense of the Latin word as background for the first meaning of the English word. “The primary sense of the Latin adj. is thus ‘pertaining to the (whole) class.’ The word is somewhat rare in classical Latin; in the later lang., when genus and species (after the Aristotelian genos and eidos) had become familiar as the technical terms for classes respectively of greater and lesser extension, generalis came to be often used in contrast to specialis; the antithetic use of the two words remains in all the European langs.” Hence general indicates “participated in by . . . all . . . the parts of a specified whole, . . . . opposed to partial or particular.”(53)
This sense of equity in the judicial law as generic to the whole of a more inclusive class, and hence discoverable elsewhere, is illustrated in the Latin translation of the Confession, published in 1656 by sympathetic Presbyterians at the University Press of Cambridge;(54) “general equity” was expanded to read “general and common equity.”(55) There are other occurrences of the word general in the English text of the Confession that well illustrate this contrast between what is the shared possession of all in a class, and what is particular to individuals: V.vii, XV.v, XXI.vii, and cf. Larger Catechism 97.
Two aspects of generality in equity are notable in the Reformed tradition before and at the time of the Westminster Assembly. Neither of these may be excluded from the phrase which appears in the Confession. First, and perhaps less significantly, there is the concept that the political constitution of a particular society carries an element common to all constitutions, and yet expresses equity in the special circumstances of that people, with laws and penal sanctions different from those of other nations; the common goal of natural equity is realized in particular polities which differ from one another.
Second, as we have found in numerous citations from contemporary Reformed theologians, there is the notion of equity as general because it is common to several sources of ethical knowledge. Classical Reformed writers isolate in the judicial laws those moral directions which are held in common with natural law and the moral law teaching of Scripture as a whole, in distinction from what is peculiar to the judicial laws and hence does not rise above temporary obligation. The classical Reformed tradition has sought corroboration from other sources for the content of general equity, before accounting a provision of the Mosaic judicial law to be of perpetual obligation. Often the initial point of reference for Puritan writers was natural law, and this is reflected in the Confession’s references to the light of nature, and to the law given to man at creation.
We should also consider the connotation carried by the word equity. Beyond the notion of “what is fair and right,” the word carried the sense of “impartiality, evenhanded dealing.” The Oxford English Dictionary comments again on the influence exerted by the ancient languages. “The Latin aequitas was somewhat influenced in meaning by being adopted as the ordinary rendering of Greek epieicheia, which meant reasonableness and moderation in the exercise of one’s rights, and the disposition to avoid insisting on them too rigorously. An approach to this sense is found in many of the earlier English examples.”(56) This connotation of moderation and the appearance of fair dealing is evident in the only other occurrence of the word equity in the Westminster standards, outside of the Confession’s statement on the judicial laws. Larger Catechism 120 begins, “The reasons annexed to the fourth commandment, the more to enforce it, are taken from the equity of it, God allowing us six days of seven for our own affairs, and reserving but one for himself . . . . .”
The Oxford English Dictionary lists several senses for the word equity, its third being a usage in English jurisprudence: “The recourse to general principles of justice (the naturalis aequitas [natural equity] of Roman jurists) to correct or supplement the provisions of the law. Equity of a statute: the construction of a statute according to its reason and spirit, so as to make it apply to cases for which it does not expressly provide.”(57) Here is an interesting combination of the concept of moderation with that of appealing to a superior standard. In this connection, equity meant weighing the reason and spirit of a statute, and considering what should be either corrected or more widely applied, according as the principles of natural law might dictate.(58) This is the approach to the Mosaic judicial law illustrated by Calvin and Rutherford.
(1) John Murray, letter to The Presbyterian Guardian, 38(1969):85.
(2) Rousas John Rushdoony, The One and the Many: Studies in the Philosophy of Order and Ultimacy (Nutley, N.J.: Craig Press, 1971), pp. 262-63: “For this outer world, Calvin rejected biblical law. The world was thus in effect sundered from God and at this point given its own sovereignty and independence. . . . At the same time, Calvin strongly emphasized the duty of love. . . . This is virtually a doctrine of unconditional love; it has a vein of antinomianism in it. It is close to the position of modern liberals who believe in salvation by love. . . . . Combined with the inconsistent attitude on law, it gave ground for the development of a liberalism out of Calvin.” Cf. Rousas John Rushdoony, The Institutes of Biblical Law (Nutley, N.J.: Craig Press, 1973), pp. 9-10, 551; Greg L. Bahnsen, Theonomy in Christian Ethics, expanded edition (Phillipsburg, N.J.: Presbyterian and Reformed Publishing Company, 1984), pp. 307-14, 458-66; Gary North, Dominion and Common Grace (Tyler, Tex.: Institute for Christian Economics, 1987), pp. 119-21; Gary North, Political Polytheism: The Myth of Pluralism (Tyler, Tex.: Institute for Christian Economics, 1989), pp. 27-28, 48, 51-54, 130-33, 160 (n. 72), 367; Gary North, Westminster’s Confession: The Abandonment of Van Til’s Legacy (Tyler, Tex.: Institute for Christian Economics, 1991), pp. 52-55, 58-59, 261; Gary North, “Hermeneutics and Leviticus 19:19,” in Theonomy: An Informed Response, ed. Gary North (Tyler, Tex.: Institute for Christian Economics, 1991), pp. 259-60.
(3) Cf. North, Political Polytheism, pp. 27-28: “. . . I demand that ‘antinomianism’ be defined in terms of the five points of the biblical covenant model. . . . . I realize that I am departing from the accepted definitions offered by the historical Church. This is necessary; I am also departing from the Church’s long-term reluctance to define and apply the covenant.” Cf. pp. 52-53: “Yes, I am offering a more comprehensive definition of ‘antinomian.’ My major goal in life is to lay additional foundations for a theological paradigm shift that has already begun. . . . . One inescapable aspect of a new movement or new way of viewing the world is the creation of new terms (e.g., ‘theonomy’), and the redefining of old terms. . . . . Those who pioneer a new worldview must break the near-monopoly stranglehold over useful terms that existing intellectual guilds have gained for themselves. . . . . I am doing my best to help establish effective theological terminology for future use by those who have adopted a theonomic worldview.” Cf. p. 60: “The older definitions of ‘antinomian’ were devised by those who, if my version of God’s law is correct, were themselves antinomians.”
(4) Cf. Rushdoony, Institutes of Biblical Law, pp. 18, 23; Bahnsen, Theonomy, pp. 311-13; T. David Gordon, “Critique of Theonomy: A Taxonomy,” Westminster Theological Journal 56(1994):39: “What is distinctive about Theonomy is its resistance to recognizing discontinuity in the legislation of the various covenants.”
(5) Gen. 1:26, 27 with Gen. 2:17; Rom. 2:14, 15; Rom. 10:5; Rom. 5:12, 19; Gal. 3:10, 12; Eccles. 7:29; Job 28:28.
(6) James 1:25; James 2:8, 10, 11, 12; Rom. 13:8, 9; Deut. 5:32; Deut. 10:4; Ex. 34:1.
(7) Heb. 9 chap.; Heb. 10:1; Gal. 4:1, 2, 3; Col. 2:17.
(8) I Cor. 5:7; II Cor. 6:17; Jude ver. 23.
(9) Col. 2:14, 16, 17; Dan. 9:27; Eph. 2:15, 16.
(10) Ex. 21 chap.; Ex. 22:1 to 29; Gen. 49:10 with I Pet. 2:13, 14; Matt. 5:17, with ver. 38, 39; I Cor. 9:8, 9, 10.
(11) Rom. 13:8, 9, 10; Eph. 6:2; I John 2:3, 4, 7, 8.
(12) James 2:10, 11.
(13) Matt. 5:17, 18, 19; James 2:8; Rom. 3:31.
(14) Cf. Larger Catechism 92: “The rule of obedience revealed to Adam in the estate of innocence, and to all mankind in him, . . . was the moral law.”
(15) Cf. the deliverance of the Free Church of Scotland’s General Assembly (1997): “The General Assembly declare that the teachings commonly known as Theonomy or Reconstructionism contradict our subordinate standard, the Confession of Faith, and are inconsistent with our supreme standard, the Bible, particularly on the question of the expiry of the judicial laws.”
(16) Rushdoony, Institutes of Biblical Law, pp. 304-05: “It is a serious error to say that the civil law was also abolished, but the moral law retained. What is the distinction between them? . . . . It is clearly only the sacrificial and ceremonial law which is ended because it is replaced by Christ and His work.” Cf. p. 551: “However, in paragraph IV, without any confirmation from Scripture, it is held that the ‘judicial laws’ of the Bible ‘expired’ with the Old Testament. We have previously seen how impossible it is to separate any law of Scripture as the Westminster divines suggested. . . . . At this point, the Confession is guilty of nonsense.” Cf. Bahnsen, Theonomy, pp. 310, 450; Bahnsen, By This Standard: The Authority of God’s Law Today (Tyler, Tex.: Institute of Christian Economics, 1985), pp. 135-38, 315-18, 325-26; Greg L. Bahnsen, “The Ethical Question,” in Greg L. Bahnsen and Kenneth L. Gentry, House Divided: The Break-up of Dispensational Theology (Tyler, Tex.: Institute for Christian Economics, 1989), pp. 33-34, 98-101, 126; Greg L. Bahnsen, No Other Standard: Theonomy and Its Critics (Tyler, Tex.: Institute for Christian Economics, 1991), pp. 88, 93-95, 97-99.
(17) Bahnsen, No Other Standard, p. 99: “In endorsing the Old Testament law, the New Testament never stops to make a special exception for the judicial laws.” James B. Jordan, “Calvinism and ‘The Judicial Law of Moses’: An Historical Survey,” Journal of Christian Reconstruction 5(1978-79):19: “In the literature of Protestantism, it is assumed that the law of God comes in three categories: moral, judicial, and ceremonial. The criticism rightly shows that this category scheme is erroneous. What has been termed ‘judicial law’ is not in fact a legal code, but rather is a set of explanations of the moral law.” William O. Einwechter, Ethics and God’s Law: An Introduction to Theonomy (Mill Hall, Penn.: Preston Speed Publications, 1995), pp. 41-42: “It is important to understand that the civil laws of Israel do not constitute a third category of law; the civil laws are really a subset of the moral law.” Cf. Bahnsen, Theonomy, pp. 255-56, 260-61, 317-18, 465, 469; Bahnsen, By This Standard, pp. 235-36; Bahnsen, No Other Standard, p. 32; Jordan, “Calvinism and ‘The Judicial Law of Moses’: An Historical Survey,” pp. 21, 40; North, “Editor’s Introduction,” in Theonomy: An Informed Response, p. 5.
(18) Bahnsen, Theonomy, pp. xiv, xvi, 312-13, 446, 471; Bahnsen, By This Standard, pp. 3-4, 7, 90, 270, 307; Bahnsen, No Other Standard, pp. 32, 68-69, 71-72; North, Westminster’s Confession, pp. 81-82; North, “Editor’s Introduction to Part II,” in Theonomy: An Informed Response, p. 83. Cf. Sinclair Ferguson, “An Assembly of Theonomists? The Teaching of the Westminster Divines on the Law of God,” in Theonomy: A Reformed Critique, ed. William S. Barker and W. Robert Godfrey (Grand Rapids: Zondervan Publishing House, Academie Books, 1990), p. 327: “For the Confession, the governing principle is that the Mosaic judicial laws have expired (whatever else may be said to clarify their relevance), whereas for theonomists the governing principle is that the Mosaic judicials have not expired but are still in force; Christ has confirmed them and they are all perpetually binding.”
(19) Bahnsen, Theonomy, p. 313: “The ten commandments cannot be understood and properly applied without the explanation given them throughout the case laws of the Older Testament.” Bahnsen, By This Standard, p. 318: “. . . the case law’s principles define the Decalogue . . . . .” Cf. Bahnsen, No Other Standard, p. 102.
(20) Rushdoony, Institutes of Biblical Law, pp. 9-10, 659, 679-89; Bahnsen, Theonomy, pp. 399-400; Bahnsen, By This Standard, p. 327; North, Political Polytheism, pp. 98-99, 132-33; North, “Publisher’s Preface,” in Bahnsen, No Other Standard, pp. x-xi.
(21) Bahnsen, Theonomy, pp. xvi-xvii, 365-66, 398-99, 456-58, 462-63, 490-91; Bahnsen, By This Standard, pp. 27, 40-43, 224-25, 246, 281-82, 324-26; Bahnsen, No Other Standard, p. 45, 108, 156.
(22) Bahnsen, Theonomy, pp. 207, 212-13, 215.
(23) Alexander F. Mitchell and John Struthers, eds., Minutes of the Sessions of the Westminster Assembly of Divines (Edinburgh: William Blackwood and Sons, 1874), pp. lxxxv, 164; Benjamin B. Warfield, The Westminster Assembly and its Work (New York: Oxford University Press, 1931), p. 112.
(24) Mitchell and Struthers, Minutes of the Westminster Assembly, p. 164; Warfield, Westminster Assembly, p. 112.
(25) This is the date inscribed by George Thomason on his copy, and indicates either the date on which the work was published or on which the book came into his possession. George K. Fortescue, Catalogue of the Pamphlets, Books, Newspapers, and Manuscripts Relating to the Civil War, the Commonwealth, and Restoration, Collected by George Thomason, 1640-1661 (London: British Museum, 1908), 1:469.
(26) James Reid, Memoirs of the Westminster Divines (Edinburgh: Banner of Truth Trust, 1982), 1:148.
(27) Burgess, Vindiciae Legis: or, a Vindication of the Moral Law and the Covenants, from the Errors of Papists, Arminians, Socinians, and more especially, Antinomians (London: James Young for Thomas Underhill, 1646), p. 140.
(28) The meaning which Burgess recognized in the phrase moral law was still current a century later, when it is found in the discrimination between moral, ceremonial and judicial laws in Fisher’s Catechism, the most influential Scottish Presbyterian exposition of the Westminster Shorter Catechism. Fisher’s Catechism was also widely circulated in nineteenth-century America by the Presbyterian Board of Publication. “Q. 12. What is the meaning of the word moral, when applied to the law? A. Though the word literally has a respect to the manners of men; yet, when applied to the law, it signifies, that which is perpetually binding, in opposition to that which is binding only for a time.” Ebenezer Erskine, Ralph Erskine and James Fisher, The Assembly’s Shorter Catechism Explained, By Way of Question and Answer (Glasgow: Robert Urie, 1753-60), 2:6, commenting on Shorter Catechism 40.
(29) Cf. J. Ligon Duncan, Moses’ Law for Modern Government, second edition (Greenville, S.C.: Reformed Academic Press, 1996), pp. 28-31: “. . . Bahnsen attempts to link the civil ordinances to the moral law in such a way that any evidence for the continuing validity of the moral law in the New Covenant era becomes an argument in favor of the continuing validity of the civil code. Thus, standard Reformed arguments for the abiding authority of the moral law are marshaled by Reconstructionists as material to buttress their distinctive position. . . . . In other words, if one . . . continues to hold to a threefold rather than a twofold division of the law, then all Bahnsen’s argument proves is the continuing validity of the moral law. His argument cannot be sustained apart from the rectitude of his twofold division.” Cf. John M. Frame, “The Institutes of Biblical Law: A Review Article,” in Westminster Theological Journal 38(1975-76), pp. 200-01.
(30) Bahnsen, Theonomy, pp. xx, 313, 540-41; Bahnsen, By This Standard, 137, 174; Bahnsen, “The Ethical Question,” in House Divided, p. 126; Bahnsen, No Other Standard, p. 94. Cf. Rushdoony, Institutes of Biblical Law, pp. 10-12.
(31) Bahnsen, No Other Standard, pp. 31-34.
(32) Bahnsen, By This Standard, 138, 277-78, 318; Bahnsen, No Other Standard, p. 102; Jordan, “Calvinism and ‘The Judicial Law of Moses’: An Historical Survey,” p. 19.
(33) Bahnsen, Theonomy, p. 540-41; Bahnsen, By This Standard, 138; Bahnsen, No Other Standard, pp. 46-47, 99, 101-02.
(34) Bahnsen, No Other Standard, pp. 27-28, n. 18: “There is an objective and precise difference: viz., all theonomists affirm (while non-theonomists deny) that we should presume that Old Testament criminal and penal commands for Israel as a nation (not specially revealed earlier) are a standard for all nations of the earth.” Cf. pp. 68-69; Bahnsen, Theonomy, pp. 317-18, 435-36, 442, 446-47, 462-66; Bahnsen, By This Standard, pp. 3-4, 271, 275-76, 283, 338-39; North, “Editor’s Conclusion,” in Theonomy: An Informed Response, pp. 319-20.
(35) Bahnsen, Theonomy, p. 450.
(36) Rushdoony, Institutes of Biblical Law, pp. 76-78, 235-37; Bahnsen, Theonomy, pp. xvii, xviii, 441-42, 470; Bahnsen, By This Standard, pp. 273-74, 278-80; Bahnsen, No Other Standard, pp. 211-12, 214-16, 252-53, 256-57; North, “Editor’s Introduction,” in Theonomy: An Informed Response, pp. 5-6; Einwechter, Ethics and God’s Law, pp. 50-52, 55.
(37) John Calvin, Institutes of the Christian Religion, ed. John T. McNeill, trans. Ford Lewis Battles, 2 vols., Library of Christian Classics, vol. 20 (Philadelphia: The Westminster Press, 1960), 2:1503-04 (IV.xx.15-16). Cf. W. Robert Godfrey, “Calvin and Theonomy,” in Theonomy: A Reformed Critique, ed. William S. Barker and W. Robert Godfrey (Grand Rapids: Zondervan Publishing House, Academie Books, 1990), p. 302: “The key distinction for Calvin between the moral and the ceremonial or judicial laws is that the moral law is unchangeable, whereas the ceremonial and judicial laws are changeable. . . . . Calvin sees this unchanging moral law as the foundation of all particular civil laws. The moral law is the equity or the common, natural basis of all civil law.”
(38) Theodore Beza, Concerning the Rights of Rulers Over Their Subjects and the Duty of Subjects Towards Their Rulers, trans. Henri-Louis Gonin, ed. A. H. Murray (Cape Town: H.A.U.M., 1956), p. 68. The work was published in 1574 as De iure magistratuum.
(39) Theodore Beza, De Haereticis a civili Magistratu puniendis Libellus (Geneva: Robert Stephanus, 1554), pp. 222-23. Quanvis politiae Mosaicae formulis non teneamur, tamen quum Iudiciales istae leges iudiciorum aequitatem praescribant, quae pars est Decalogi, nos, ut illis non obligemur quatenus à Mose uni populo perscriptae sunt, eatenus tamen ad eas observandus teneri, quatenus generalem illam aequitatem complectuntur, quae ubique valere debet. . . . . Iubet Dominus depositum reddi, & furem punir. . . . . Quia tamen naturalem aequitatem sequitur, & perpetuum illud Decalogi praeceptum NE FURERIS explicat: hactenus omnes ad utramque illam praestandem tenetur. Fur interdum ad furti restitutionem, interdum in duplum, nonnunquam in quadruplum . . . . . Haec poena merè est politica, & unam Israelitarum gentem obligat, quibus scilicet unis est accomodata. Licet igitur Magistratui in sua ditione ob certas & bonas causas asperiorem poenae modum praescribit . . . . . Et sanè siquis Graecorum nonnullas, Romanorum autem plerasque leges cum Mosaicis compararit, tamen inter eas etiam in poenis constituendis similitudinem inveniet, ut omnes satis appareat ad eundem naturalis aequitatis scopum fuisse accomodatus.
(40) William Perkins, A Discourse of Conscience (1596), in Works (Cambridge: John Legate, 1608), 1:514. Reprint in William Perkins, ed. Thomas F. Merrill (Nieuwkoop, Netherlands: B. De Graaf, 1966), p. 13.
(41) Ibid., p. 513. Reprint in William Perkins, p. 11.
(42) Ibid. Reprint in William Perkins, p. 12.
(43) Ibid., pp. 513-14. Reprint in William Perkins, pp. 12-13.
(44) Paul Baynes, An Entire Commentary upon the Whole Epistle to the Ephesians (London: M. F. for R. Milbourne and I. Bartlet, 1643), p. 294.
(45) Bolton gives here in the margin a quotation from the German Reformed theologian J. H. Alsted (1588-1638), who was a member of the Synod of Dort: Ex legibus judicialibus illae sunt perpetuae quae sunt juris communis, sive quae habent aliquid morale, illae vero abrogatae quae sunt particularis, etc.
(46) Samuel Bolton, The True Bounds of Christian Freedom (London: J. L. for Philemon Stephens, 1645), p. 72. Cf. reprint (London: Banner of Truth Trust, 1964), p. 56. Fortescue, Catalogue of the Pamphlets, 1:375, assigns the date April 30, 1645 to the first edition.
(47) Mitchell and Struthers, Minutes of the Westminster Assembly, pp. 178, 182-83 and 185.
(48) William Gouge, A Learned Commentary on the Whole Epistle to the Hebrews (London: A. M., T. W. and S. G. for Joshua Kirton, 1655), second part, p. 149, on Heb. 7:5: “and have a commandment to take tithes of the people according to the law.” Cf. second part, pp. 129-30.
(49) Rogers, Scripture in the Westminster Confession, p. 176.
(50) Samuel Rutherford, A Free Disputation Against Pretended Liberty of Conscience (London: R.I. for Andrew Crook, 1649), pp. 298-99.
(51) Ibid., pp. 206-09 (Dd4-Ee1).
(52) Frederick S. Carney, “Associational Thought in Early Calvinism,” in D. B. Robertson, Voluntary Associations: A Study of Groups in Free Societies (Richmond, Va.: John Knox Press, 1966), p. 48: “Common law is the term usually employed by these Calvinists to express the shared content of natural law, the Decalogue, and the Great Commandment.”
(53) Oxford English Dictionary, second edition, s.v. “general.”
(54) William Cunningham, “The Westminster Confession on the Relation Between Church and State,” in Discussions of Church Principles: Popish, Erastian, and Presbyterian (Edinburgh: T. & T. Clark, 1863), p. 223.
(55) Philip Schaff, The Creeds of Christendom (Grand Rapids: Baker Book House, 1990), 3:641. IV. Iisdem etiam tanquam corpori politico leges multas dedit judiciales, quae una cum istius populi politeia expirarunt, nullos hodie alios obligantes supra quod generalis et communis earum aequitas postularit.
(56) Oxford English Dictionary, second edition, s.v. “equity.”
(58) Ibid. Indeed, this approach to law produced a separate court in England. “In England (hence in Ireland and the United States), the distinctive name of a system of law existing side by side with the common and statute law, . . . and superseding these, when they conflict with it. The original notion was that of sense 3, a decision ‘in equity’ being understood to be one given in accordance with natural justice, in a case for which the law did not provide adequate remedy, or in which its operation would have been unfair. . . . . In England, equity was formerly administered by a special class of tribunals, of which the Court of Chancery was chief . . . . .” The dictionary illustrates this usage with a citation from Lambarde (1591): “And likewise in his Court of Equity he doth . . . cancel and shut up the rigor of the general Law.”