15
LOCAL JUSTICE VS. CENTRALIZED GOVERNMENT Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty: but in righteousness shalt thou judge thy neighbour (Lev. 19:15).
Leviticus 19:15 deals with more than just the principle of impartial civil justice; it also deals with the locus of civil judicial sovereignty: "Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honour the person of the mighty: but in righteousness shalt thou judge thy neighbour." This law established the requirement that the citizens of Israel from time to time be required to serve as civil judges in their communities. Jethro had told Moses: "Moreover thou shalt provide out of all the people able men, such as fear God, men of truth, hating covetousness; and place such over them, to be rulers of thousands, and rulers of hundreds, rulers of fifties, and rulers of tens: And let them judge the people at all seasons: and it shall be, that every great matter they shall bring unto thee, but every small matter they shall judge: so shall it be easier for thyself, and they shall bear the burden with thee" (Ex. 18:21-22). The focus of Leviticus 19:15 is on civil courts within the local community, although the principle of equality before the law also applies to ecclesiastical courts. The verse specifically says, "in righteousness shalt thou judge thy neighbor." There is a very strong emphasis on ethics: righteousness. There is also a very strong emphasis on localism in this verse: judging a neighbor.
Two issues are fundamental in this verse: equality before the law and judicial participation. First, equality before the law: this points back to Exodus 12:49, where the law of God is identified as the binding judicial standard for all civil judgment, irrespective of the national and covenantal origins of residents within the land.(1) Second, local judicial participation: the law is given to people in a particular community. Law enforcement is always to begin with self-judgment. The formal exercise of covenantal judgment then extends to local covenantal institutions: church, family, and State. This indicates that jurors and judges in the first stage of civil court proceedings must be recruited from the local community. Their attitudes will inescapably be shaped by that community. Acknowledging both the reality and the legitimacy of this institutional arrangement, Leviticus 19:15 emphasizes the necessity of righteousness. It is this fusion of God's universal standards with honest and impartial judgment according to local customs and circumstances -- the one and the many -- that is the basis of the development of the godly civil order.(2)
Judicial Localism Thomas P. "Tip" O'Neill, who served as the Speaker of the U.S. House of Representatives in the 1980's,(3) once described the nature of American politics: "All politics is local." This undoubtedly reflects the bias of a member of the U.S. House of Representatives (435 members, each elected to represent a single geographical district), but his observation is correct regarding biblical civil government. In a political order that is structured in terms of biblical standards, politics is inherently local. The reason why this is true is that politics is an aspect of the civil judicial order. Politics is an aspect of civil judicial sanctions. It is the means by which those who are lawfully represented in the civil realm are given an opportunity periodically to sanction their judicial representatives: legislators, judges, and governors. This is the Bible's authorized means of allocating lawful civil authority. This is why all politics is inherently a form of the judiciary.(4) Politics is an outworking of the civil office of judge.
In the area of civil justice, however, it is clear that the average citizen still possesses more authority on a jury than he does in any other civil office. Unless he holds elective office or is a judge, his office as juror is the most influential civil office that he will hold. The jury is the local institution that has the authority to declare a person innocent. Its judgment is final in the case of a declaration of innocence.(5) So, judicial sovereignty is overwhelmingly local with respect to the declaration, "Not guilty."
Biblical politics is at bottom local because biblical courts are at bottom local. Judicial authority moves from the bottom to the top (local jurisdiction to the more distant center) in a biblical civil order (Ex. 18). Biblical civil justice is exclusively negative: bringing negative sanctions against those who initiate or commit acts that violate fundamental law and its appropriate legislation. An individual defies the legislation by committing a prohibited act. The biblical judicial model places primary responsibility for applying the law within the community in which the prohibited act took place, since the victim was injured while residing under the jurisdiction of a local court. The judicial process of bringing negative sanctions therefore must begin with an investigation of the facts of the case in a particular place and at a certain time. It is least expensive in most judicial conflicts to obtain accurate information about local events in the local jurisdiction. It is also least expensive to obtain accurate information about the local community's interpretation of the law in the local jurisdiction.
The legal issue is jurisdiction: speaking (diction) the law. Who possesses the initial right and responsibility for speaking the law and then enforcing it? Exodus 18 is clear: local magistrates.
Tribal Boundaries
The preservation of freedom in Israel's civil order relied on local jurisdiction. Local tribal units helped to maintain this localism. There had to be permanent legal boundaries between each tribe. These boundaries protected Israel from political centralization. Political scientist Aaron Wildavsky writes: "Moses' strategy was to divide the Israelites to keep them whole. Treating the people as a collective unit exposed them to collective punishment." He gives the example of the Levites' slaying of three thousand members of other tribes who had participated in the idolatry of the golden calf (Ex. 32:27-28). "If Moses had not shown that he would punish at least some of the people, the Lord, in whose eyes all were equally guilty, would have done them all in. So Moses had to separate some to save others."(6) Wildavsky could also have offered the example of the tribe of Benjamin, whose rebellion led to the military destruction of almost the entire tribe by the other tribes (Jud. 20). Sin was contained. Israel's tribal boundaries served as restraints against the spread of covenantal rebellion. In this sense, tribal boundaries had a primary defensive judicial aspect: preserving the authority of local jurisdictions and outlooks.
These boundaries also had a secondary expansive judicial aspect. A local jurisdiction could begin to apply God's law in a new way, and this new application might prove beneficial to the local community. Localism leads to experimentation. A tribal unit could become a kind of judicial laboratory. The rest of the nation could see if God blessed this experiment. (This presumes that God did bring predictable, visible, positive corporate sanctions in history in response to corporate covenantal faithfulness.) At the discretion of the local community, the new judicial practices of another tribe could be imported. But the importing initiative was local, unless the nation's supreme civil authorities mandated the change in the name of God's law. If the nation's appeals court used the local guideline as a judicial standard, it would become a national standard.
Localism in Mosaic Israel was offset in part by the presence of Levites: local advisors who rarely had an inheritance in rural land.(7) Instead, they had income from the tithe (Num. 18:20-21) and urban property (Lev. 25:32-34). They served as specialized judicial agents of God. The tribe of Levi was the only cross-boundary national tribe: the tribe that publicly spoke God's law. So, there was both localism and universalism, the many and the one, in the judicial structure of Mosaic Israel.
The Division of Judicial Labor The organizational problem that Moses faced in applying God's revealed law to specific cases was that there were too many disputes to settle. He was God's only authorized voice of civil authority within the nation, as Korah and Dathan learned the hard way (Num. 16). His word was the final earthly court of appeal in Israel. He therefore became the central civil judicial institution, which is another way of saying that he became the pinnacle.
And it came to pass on the morrow, that Moses sat to judge the people: and the people stood by Moses from the morning unto the evening. And when Moses' father in law saw all that he did to the people, he said, What is this thing that thou doest to the people? why sittest thou thyself alone, and all the people stand by thee from morning unto even? And Moses said unto his father in law, Because the people come unto me to inquire of God: When they have a matter, they come unto me; and I judge between one and another, and I do make them know the statutes of God, and his laws. And Moses' father in law said unto him, The thing that thou doest is not good. Thou wilt surely wear away, both thou, and this people that is with thee: for this thing is too heavy for thee; thou art not able to perform it thyself alone (Ex. 18:13-18).
The problem was that Moses, despite his ability to declare the most reliable civil judgments in the land (or in the world, for that matter), had become an impediment to obtaining widespread justice. The reliability and predictability of civil judgment in Israel was no better than the ability of the disputants to get to the front of the line. This allocation system for civil justice rewarded those who were willing and able to stand in line. But standing in line is expensive. It uses up the only truly irreplaceable economic resource: time. Jethro saw the problem and recommended a solution.
Hearken now unto my voice, I will give thee counsel, and God shall be with thee: Be thou for the people to God-ward, that thou mayest bring the causes unto God: And thou shalt teach them ordinances and laws, and shalt shew them the way wherein they must walk, and the work that they must do. Moreover thou shalt provide out of all the people able men, such as fear God, men of truth, hating covetousness; and place such over them, to be rulers of thousands, and rulers of hundreds, rulers of fifties, and rulers of tens: And let them judge the people at all seasons: and it shall be, that every great matter they shall bring unto thee, but every small matter they shall judge: so shall it be easier for thyself, and they shall bear the burden with thee. If thou shalt do this thing, and God command thee so, then thou shalt be able to endure, and all this people shall also go to their place in peace. So Moses hearkened to the voice of his father in law, and did all that he had said. And Moses chose able men out of all Israel, and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens. And they judged the people at all seasons: the hard causes they brought unto Moses, but every small matter they judged themselves (Ex. 18:19-26).
This solution was based on the economic principle of the division of labor. It necessarily relied on the judicial principle of localism. The authority to impose civil and ecclesiastical sanctions moved upward judicially (i.e., inward geographically, toward the tabernacle, and later, once they were in the Promised Land, toward Jerusalem) from the local jurisdiction to a more distant jurisdiction.(8) This means that the broadest judicial authority in Israel was local. This was where the resident of Israel first encountered God's civil law. Jethro reserved the judicial system's scarcest economic resources -- those people who possess progressively better-informed judgment -- for the progressively more difficult cases.
Judicial resources, being scarce, had to be allocated by means of some principle. This was not the free market principle of "highest bid wins." Civil and ecclesiastical justice may not lawfully be purchased. But without price allocation, there was only one other alternative means of rationing civil justice: standing in line. Jethro's system transformed the single long line in front of Moses' tent into tens of thousands of shorter lines. Rashi,(9) the late eleventh-century French rabbinic commentator, estimated that in Moses' day, there would have been 78,600 judges in four levels.(10)
The Intellectual Division of Labor
Localism is extremely important for the advancement of what I call the division of judicial labor. The concept of the division of labor is basic to the Bible. We see it in a primarily negative sense in the scattering of families at the Tower of Babel.(11) We see it in a positive sense in Paul's injunction that the simple man or the man of one primary skill not feel bad because he does not possess a skill that a more prestigious individual has. In both I Corinthians 12 and Romans 12, Paul was speaking of the church as a body. No individual member of the body should feel that he is less important than any other member of the body. The body is governed by its head, Jesus Christ. Therefore, so long as the entire body is honoring its head, no member of the body should feel as though he is less important than any other (I Cor. 12:4-27).
The idea of scarcity is the most fundamental idea of economics: "There is no such thing as a free lunch." Scarcity is defined as follows: at zero price, there is greater demand for a scarce resource than there is supply. Modern economics asks the question: How can men reduce the level of scarcity? This is the question of wealth or economic development. Modern economics began with the observation that the division of labor is society's most important means of reducing scarcity. We date the advent of modern economics with the publication of Adam Smith's Wealth of Nations in 1776. Smith began Book I, Chapter I, which is titled "Of the Division of Labour," with these words: "The greatest improvement in the productive powers of labour, and the greater part of the skill, dexterity, and judgment with which it is anywhere directed, or applied, seem to have been the effects of the division of labour." His statement refers to the productivity of labor, but it applies to every area of human endeavor in which cooperative service is beneficial. He was saying that there is a greater output of goods and services for any single input of labor resource when individuals cooperate voluntarily in a division of labor economy.
The application of a biblical truth -- the division of labor within the institutional church -- is not limited to the church or to economics. It also has important ramifications for politics, social institutions, and all other aspects of life in which men and women cooperate for personal gain, and whose cooperative efforts lead to greater social benefits. The principle is this: through cooperation, the specialized knowledge of individuals can be applied more effectively to those areas of life in which this knowledge is most appropriate. Thus, it is possible for individuals to achieve greater output because their unique skills and unique knowledge are most effectively applied to the specific and narrow tasks at hand. This means that through the division of labor, there is a greater output of socially valuable wisdom from a given input of individual knowledge. It is the free market economic order alone that permits the widespread co-ordination of individual plans.(12) By bringing together many minds to deal with particular problems, society gains the benefit of obtaining greater wisdom at any given expenditure -- in this context, judicial cases. It also means that there will be a greater number of cases settled by courts when this division of labor is operating. Many courts and many cases mean greater justice within the community (Ex. 18).
Committees and Representation
A committee is a means of pooling knowledge: division of intellectual labor. The ultimate committee -- the Trinity -- is an economical Trinity as well as an ontological Trinity. There is a hierarchy of tasks and responsibilities despite the three Persons' equality of Being. It is not sufficient to say that the three Persons of the Trinity are equal in substance and glory (the ontological Trinity). We must also distinguish their interrelationships and their specific tasks (the economical Trinity). The Holy Spirit is sent by both the Father (John 14:26) and the Son (John 16:7). The Spirit goes where He is sent. There is no escape from hierarchy, not even in the Trinity. But this subordination is functional and relational, not in terms of God's being or substance.(13) God is the ultimate committee: unified yet plural. There is a division of labor within the Godhead.
Human committees do not possess omniscience or perfect unity. There are institutional limits on men's division of intellectual labor. We see this most notably in the operations of committees. After leaving a committee meeting, Nobel Prize-winning economist George Stigler remarked that Charles Lindburgh's 1927 feat of flying across the Atlantic alone from New York to Paris seems less impressive when we consider the difficulty he would have faced had he made the same flight under the direction of a committee.(14) There is a familiar saying: "A camel is a horse designed by a committee." This saying recognizes a fundamental problem with committees: they are seldom creative, despite the division of intellectual labor.
Why is this the case? Because of the difficulty of establishing individual responsibility and therefore of applying appropriate sanctions, either positive or negative. It becomes more expensive to monitor individual performance and reward it appropriately as the size of any organization increases.(15) A committee's productivity stems primarily from its collective knowledge in judging plans submitted by responsible individuals. A committee pools individual judgments. A committee is far better able to determine why something has not worked properly in the past than what will work best in the future. It is an institution far more suitable for imposing negative sanctions against the managers of poorly functioning operations than for producing original institutional designs leading to productive future operations.(16) In short, a committee is most productive when it delegates authority to a representative. It then brings either positive or negative sanctions against its representative in terms of specific performance criteria.
A committee sets general policy. More to the point, it elects a representative agent who devises and then proposes general policy. He submits his plan to the committee, which then accepts, modifies, or rejects the plan of action or policy. Having set (approved) general policy, a committee retains a veto over decisions made by its representative agent. A committee that attempts to do more than veto decisions made by innovators will strangle the host organization. A committee loses efficiency when it seeks to impose its general policies at the local level. We readily understand this in the case of military operations: one person is in command over his troops, but he answers to a senior officer, all the way up to the Joint Chiefs of Staff or its equivalent. We also understand that the greater the distance from the central command, the greater the local commander's knowledge of the battlefield. The military command's problem is to fuse the one and the many: the overall plan of battle with battlefield tactics.(17) We could call this military casuistry: local application of the general's laws.
The organizational problem that a human committee faces is the task of establishing clear-cut boundaries of individual authority and responsibility. Each division must possess its own appropriate tasks, regulations, and sanctions, especially sanctions, both positive and negative. As economist Thomas Sowell writes, "the most basic decision is who makes the decision, under what constraints, and subject to what feedback mechanisms."(18) The success of any committee is almost always a direct result of the committee's ability to assign institutional responsibilities: representative authority. The committee's decisions therefore tend to become the decisions of the committee chairman, subject to a veto by the committee. The alternative is impersonal decision-making by less easily identified individuals who are more interested in escaping individual responsibility than in creating positive programs in the name of the committee.
The Worldwide Extension of God's Law
Adam Smith made an extremely important observation in Chapter 3 of the Wealth of Nations. Chapter 3 is titled, "That the Division of Labour is Limited by the Extent of the Market." This statement is one of the most important insights in the history of economic analysis. It presents the case for a wide market in which individuals offer for sale the output of their labor: goods and services. The wider the market, the greater the specialization of production and therefore the greater the output per unit of input. Per capita wealth increases.
The same principle applies to the market for civil justice. The division of judicial labor is also limited by the extent of the market. This leads to three very important implications. First, the law of God was always intended to extend beyond the geographical boundaries of ancient Israel, i.e., geographical extension. The goal was always to obtain greater knowledge of God's principles of civil justice, so that all men would be able to better understand those principles as applied in specific situations. This is why Jonah's missionary venture into Assyria was an important aspect of achieving greater justice within national Israel. The idea behind missionary ventures is to bring more and more people under the authority of God's law, and therefore to gain greater and greater wisdom about the legitimate and necessary applications of God's law to concrete situations in history. Christendom in this way brings more and better minds to bear on the specific cases in the courts, not just nationally, but internationally.
Second, biblical law still applies in the New Testament era. Not only was God's revealed law always intended to spread geographically across the face of the earth, it was also expected to extend chronologically throughout history. This chronological extension means that judicial precedents set by courts over long periods of time are supposed to accumulate. We are supposed to gain ever-accumulating wisdom about the applicability of God's law to specific disputes in history by means of our knowledge of these precedents. This is the judicial application of the biblical principle of progressive sanctification. A definitively revealed legal structure is to be applied with ever-increasing precision in men's judicial decisions in history.
We see this development clearly in the history of rabbinic law, specifically with respect to that body of law called the Responsa.(19) In the state of Israel today, something in the range of 300,000 decisions(20) by earlier Jewish courts have been entered into computers.(21) These precedents have come as a result of some 1,500 years of decisions. They are regarded as legal precedents in the state of Israel. This is a tremendous advantage that the Jews have compared to the Christians. They have a larger and older body of judicial precedents, and this body of law is focused by means of an agreed-upon set of principles of judicial interpretation.(22) In short, there is a far greater division of intellectual labor in rabbinic law than in any other legal system in the world.
Third, this principle of the judicial division of labor implies that Christendom as an ideal is binding in New Testament times. The rule of God is supposed to be acknowledged by men as universally binding. A self-conscious application of God's universally binding law in history is to be extended in every area of life. This is the meaning of the concept of Christendom: a universal civilization based on a single, definitive legal order, but applied locally, regionally, nationally, and internationally in a series of hierarchical civil courts.(23) This common law-order is the judicial equivalent of a common language with regional accents. Without a common grammar and common vocabulary, there can be little communication across linguistic barriers.(24) Biblical law is the "common grammar" that God has given His church in order to bring cultural unity: Christendom. Historically, the philosophers of the church have appealed to natural law concepts, either Greek or Newtonian, in their quest for a common judicial order and therefore common civilization. This has been an importation of an alien judicial grammar, one which is at bottom cacophonous. The presence of similar words -- the "vocabulary" of justice -- has masked the existence of rival "grammatical" structures: covenant-keeping vs. covenant-breaking.(25)
Judges and Jurors Localism is the foundation of the biblical judicial system. The primary authority to declare judgment under biblical law is the local court. The fundamental agency of corporate judgment is the local court, whether civil or ecclesiastical. This is an extremely important principle for any system of law designed to resist the centralization of power.
The civil judge in the Mosaic Covenant declared the sentence: negative sanctions. Capital sanctions were carried out by the people, beginning with the witnesses (Deut. 17:6). Case by case, the civil court was to declare judgment. As the cases grew more difficult, they would work their way up the appeals court system. The most difficult civil cases ended up in Jerusalem in the king's courtroom. The king was the Supreme Court of the Israelite civil order. This is why he was commanded to read the law daily (Deut. 17:18-19). Yet even the king could not lawfully declare absolutely final earthly judgment, imposing final earthly sanctions, for there is no final, institutionalized, earthly court of appeal in a biblical civil order. Only one person can lawfully declare the final judicial word of the Lord: Jesus Christ. Therefore, the people as a whole could lawfully intervene to restrain the king, as they did when Saul attempted to carry out his judgment against his son Jonathan (I Sam. 14:45). The people placed a judicial boundary around the king, and they were willing to place a physical boundary around him. He relented. On what basis could they overturn the king's sentence? Only as authorized jurors who refused to convict Jonathan because the king's verbal legislation on the battlefield had been foolish and therefore unconstitutional. Their declaration of "not guilty" was final, and Saul accepted it.
Nevertheless, the king did lawfully serve as the highest civil judge in Israel. This was the great authority of kingship: exercising the power of speaking in God's name as the single individual who could declare God's final earthly judgment, unless the people lawfully revolted under the direction of the lower magistrates.(26) David's rebellious son Absalom began his revolt by serving as a lower judge in the gates (II Sam. 15:2-6). But his was a messianic impulse: "Absalom said moreover, Oh that I were made judge in the land, that every man which hath any suit or cause might come unto me, and I would do him justice!" (II Sam. 15:4). He promised justice to all.
To restrain this messianic impulse, the king was not allowed by God to multiply horses (offensive weapons), wives (alliances), or precious metals (Deut. 17:16-17). He was required to study biblical law daily (Deut. 17:18-19). He had to be placed under judicial and institutional restraints in order to restrict the development of a messianic impulse based on concentrated civil authority. Legitimate authority was not to become illegitimate power. It is this move from multiple authorities to a single authority -- from legitimate, decentralized social authority to centralized State power -- that is the essence of the move from freedom to totalitarianism.(27) Biblical law places boundaries around centralized political authority in order to prevent this development.
When thou art come unto the land which the LORD thy God giveth thee, and shalt possess it, and shalt dwell therein, and shalt say, I will set a king over me, like as all the nations that are about me; Thou shalt in any wise set him king over thee, whom the LORD thy God shall choose: one from among thy brethren shalt thou set king over thee: thou mayest not set a stranger over thee, which is not thy brother. But he shall not multiply horses to himself, nor cause the people to return to Egypt, to the end that he should multiply horses: forasmuch as the LORD hath said unto you, Ye shall henceforth return no more that way. Neither shall he multiply wives to himself, that his heart turn not away: neither shall he greatly multiply to himself silver and gold. And it shall be, when he sitteth upon the throne of his kingdom, that he shall write him a copy of this law in a book out of that which is before the priests the Levites: And it shall be with him, and he shall read therein all the days of his life: that he may learn to fear the LORD his God, to keep all the words of this law and these statutes, to do them: That his heart be not lifted up above his brethren, and that he turn not aside from the commandment, to the right hand, or to the left: to the end that he may prolong his days in his kingdom, he, and his children, in the midst of Israel (Deut. 17:14-20).
What, then, was the basis of a judge's authority? We can answer this best by asking: "Biblically, who declared the law in ancient Israel?" The priests did. Yet this office was not limited to ecclesiastical affairs. Israel was a kingdom of priests. "And ye shall be unto me a kingdom of priests, and an holy nation. These are the words which thou shalt speak unto the children of Israel" (Ex. 19:6). This was an office held by all adult circumcised males (age 20+)(28) and all adult women under the authority of a circumcised male.(29)
Civil Priests
There were both civil and ecclesiastical priests. The elders in the gates in ancient Israel were empowered by God to make the civil judicial system function. The elders in the gates imposed the negative sanctions of God's civil law. The priests were advisors to the elders.
If there arise a matter too hard for thee in judgment, between blood and blood, between plea and plea, and between stroke and stroke, being matters of controversy within thy gates: then shalt thou arise, and get thee up into the place which the LORD thy God shall choose; And thou shalt come unto the priests the Levites, and unto the judge that shall be in those days, and inquire; and they shall show thee the sentence of judgment: And thou shalt do according to the sentence, which they of that place which the LORD shall choose shall shew thee; and thou shalt observe to do according to all that they inform thee: According to the sentence of the law which they shall teach thee, and according to the judgment which they shall tell thee, thou shalt do: thou shalt not decline from the sentence which they shall shew thee, to the right hand, nor to the left. And the man that will do presumptuously, and will not hearken unto the priest that standeth to minister there before the LORD thy God, or unto the judge, even that man shall die: and thou shalt put away the evil from Israel. And all the people shall hear, and fear, and do no more presumptuously (Deut. 17:8-13).
The point is, civil rulership was plural because priestly rulership was plural. This has not changed. Who are the civil priests -- citizens who exercise lawful civil sanctions -- in New Testament times? Biblically speaking, in a formally covenanted nation -- which all nations are required by God to become(30) -- only those adults who are church members and are therefore under church authority.(31)
The Jury
The fundamental agency of the local court -- both civil and ecclesiastical -- is the jury. It is the jury that announces guilt or innocence after having heard the arguments of conflicting parties in the courtroom. Its members evaluate the cogency of the arguments and the "fit" between the law and the evidence. The jury places limits on the judge's authority to decide the case. This is especially true in the United States. Writes legal historian Lawrence M. Friedman: "The modern European law of evidence is fairly simple and rational; the law lets most everything in and trusts the judge to separate good evidence from bad. But American law distrusts the judge; it gives the jury full fact-finding power, and in criminal cases, the final word on innocence or guilt. Yet the law has distrusted the jury almost as much as it has distrusted the judge, and the rules of evidence grew up as a countervailing force. The jury hears only part of the story; that part which the law of evidence allows. The judge is bound too. If he lets in improper evidence, the case may be reversed on appeal. Hence the rules control both judge and jury."(32) In modern American law, the formal presentation of the evidence is under the direction of the judge, and this authority has been used increasingly to restrict the jury's access to evidence. The familiar words of the lawyer, "Objection, your honor," is the heart of this control. The judge can sustain or overrule the lawyer's request to withhold evidence in the court. This seemingly arbitrary power was not always the case, but it has become such since the early 1800's through the development of rules of evidence and courtroom order.(33)
The jury system is a necessary outworking of a biblical legal order. It did not appear overnight in the early church, even as slavery was not condemned overnight. But it had to develop in a Christian legal order, even as slavery had to be abolished.(34) The jury's legal basis is the priesthood of all believers.(35) The jury is a Christian institution. This is not to say that it is exclusively a Christian institution. Ancient Athens and Rome both had trial by jury.
Popular Sovereignty in Athenian Democracy
The Athenian judicial system was inaugurated by Solon in the sixth century, B.C. Aristotle said that, by this act, Solon introduced the principle of democracy into Athens. His successors attempted to flatter the people by expanding the power of the courts, and thereby "transformed the constitution into its present form of extreme democracy."(36) Originally, Aristotle speculated, Solon had not intended to transfer this much power to the people. "He gave them simply the rights of electing the magistrates and calling them to account; and if the people do not enjoy these elementary rights, they must be a people of slaves, and thus enemies to the government."(37) Aristotle implied that Solon understood the connection between the jury, the election of magistrates, the ability to call them to account, and political freedom. The covenantal issue is the same in all cases: sanctions.
The Athenian judicial system failed because of its doctrine of popular sovereignty. By the mid-fifth century, Athens relied on huge courts (dikasteria) with hundreds of juror-judges: 201, 301, 401, or 501 per court. Each court heard hundreds of cases per year, with each case taking no more than one day to decide.(38) Based as they were on the theology of the omnipotence of the people, the jurors were subject to very few laws or restrictions. Glotz, an admirer of the system, summarized it: "Armed with an arbitrary power the people, the sovereign justiciary, admitted of no restriction either upon its severity or upon its mercy; but it placed its omnipotence more often at the service of its constant humanity than of its sudden and short-lived passions. Above all it freed itself from the tyranny of forms and fixed rules in order that individual rights might prevail and equity be discovered."(39) Glotz praised the Athenian judicial system, for it did not remain "superstitiously attached to ancient customs and ancient laws. . . ."(40) This was jury-made law, not the enforcement of predictable laws.
This faith in the sovereignty of the autonomous Athenian people was parallelled by the rise of the Athenian empire and continual warfare.(41) Within a century, the Athenians were downplaying marriage as a mere convention and had adopted infanticide.(42) These views were widely shared throughout Greece; the region began to suffer depopulation.(43) Alexander the Great's conquests destroyed the ideal of the polis, the autonomous city-state. The ideal of the sovereignty of the people died in the classical world where it began. This took only two and a half centuries: from the mid-sixth to the late fourth. The glory that was Greece was short-lived.
The Biblical Jury
The goal of the biblical jury system is not to create new laws but rather to apply fixed biblical laws to specific cases. The function of the jury is to bring a small number of individuals into court so they can hear the disputes between individuals who have not been able to settle their disputes outside of the civil court. This is the principle of the division of labor. Many minds are focused on the details of a single case. After hearing both sides, the American jury is sequestered into a private room where members can discuss the case secure from interference or the threat of subsequent retaliation against any individual jury member. Neither the judge nor the agents of the disputants are allowed to enter this room when the jury is in session. This is a sign of its sovereignty. When the common law rule against double jeopardy is honored, the American jury becomes the final court of appeal when it issues a "not guilty" verdict.
The jury publicly announces civil judgment: guilty or innocent. This is the same judicial principle that operates in democratic balloting. It is a manifestation of point four of the biblical covenant model: the imposition of sanctions. The Anglo-American institution of the secret jury rests on the legal principle that no outside agent is authorized to bring pressure of any kind against the decision-makers who sit on that jury. No kind of public pressure, no kind of economic pressure, and no kind of threat is legal to be brought against a jury. Tampering with a jury is a criminal offense. By sequestering the jury -- by placing a judicial and physical boundary around the members in their collective capacity as jurors -- the judge pressures the members of the jury to focus all of their attention on the details of the particular case, rather than worrying about what their opinions or decisions will produce in response within the community.
This is indirect evidence that the modern political practice of the secret ballot is analogous to the sequestered jury.(44) When individual citizens bring formal political sanctions against their rulers in a democracy, they are to be left free from subsequent retaliation by politicians. The secret jury and the secret ballot are both basic to the preservation of the institutional independence of the sanctioning agents, and therefore to the preservation of the impartiality of the decision.
Double Jeopardy Another fundamental principle of biblical civil order is that when the jury declares an individual "not guilty," this individual may not lawfully be tried by any other jury for the same offense. This is known in western jurisprudence as the prohibition against double jeopardy. The jury's decision is final whenever it declares an individual not guilty. This is analogous judicially to God's definitive declaration of an individual as being not guilty. When that declaration is made, no creature in history can ever lawfully bring the same charge against the individual whom God has declared not guilty. "For I am persuaded, that neither death, nor life, nor angels, nor principalities, nor powers, nor things present, nor things to come, Nor height, nor depth, nor any other creature, shall be able to separate us from the love of God, which is in Christ Jesus our Lord" (Rom. 8:38-39).
Obviously, the definitive example that we have in all of history is God's declaration of Jesus Christ's innocence, declared publicly by means of the resurrection. When God declared Jesus Christ "not guilty" and raised Him from the dead, this testified to all mankind that no judicially valid accusation could ever be brought again against Jesus Christ. The same is true of all people whom God has declared not guilty. Unlike his power in the Old Covenant era (Job 1:6-12), Satan can no longer bring formal accusations in heaven against those to whom God has transferred Jesus Christ's judicial innocence. "And the great dragon was cast out, that old serpent, called the Devil, and Satan, which deceiveth the whole world: he was cast out into the earth, and his angels were cast out with him. And I heard a loud voice saying in heaven, Now is come salvation, and strength, and the kingdom of our God, and the power of his Christ: for the accuser of our brethren is cast down, which accused them before our God day and night" (Rev. 12:9-10).
Yet this protection from a second trial works both ways. The condemned person is only required to pay once: either economic restitution to the victim or final earthly restitution to God directly (execution). He is not to be brought before the court for the same crime, once he has made restitution. This principle is grounded in the judicial principle of the substitutionary atonement. Bahnsen writes: "It is uniformly recognized that Scripture prohibits a double infliction of punishment (e.g., the substitutionary atonement of Christ rests on this cardinal point with respect to eternal judgment). Therefore, double trial (i.e., double jeopardy) is ruled out; a man once tried and sentenced is not to be subjected to further trial for the same offense. Otherwise the biblical restriction of forty stripes (Deut. 25: 3) would be senseless; through retrial for the same crime a man could repeatedly be given sets of forty stripes. Thus double trial is forbidden. Now, if this protection is extended even to the guilty, to those convicted of offense, how much more should the protection be afforded to those who are acquitted as innocent? To grant this security to the convicted and withhold it from the innocent would indirectly constitute showing respect unto the wicked and a double standard of treatment (cf. Deut. 25: 13-16). Therefore, to violate the prohibition of double jeopardy is to run counter to underlying principles of biblical justice."(45) He cites II Samuel 14:4-11, where David was tricked by Joab (vv. 2-3) into granting protection from further legal action to a man (mythical) who had supposedly slain his brother in a fight. David's honoring of the principle of double jeopardy was the judicial basis of his decision.
The principle of protection against double jeopardy is to bring a solution in history to a formal dispute that could not be otherwise solved. The accused, brought before the court and then declared not guilty by the jury, knows that he will not have to worry in the future about defending himself against that particular accusation.(46) Because the jury's declaration of innocence is final, it leads to a reduced number of appeals to higher courts. Only those cases in which a jury has declared an individual guilty do we see a stream of appeals to higher courts.
This protection against double jeopardy does not apply to church courts. First, church membership is voluntary. Second, court costs are minimal. Third, and most important, unlike American civil government, local church government is not divided into judicial, legislative, and executive branches. A church court is unitary. There must be a way to overturn the decisions of such a unitary local power. A local congregation's declaration of "not guilty" can be overturned by a higher court. If this were not true, no liberal clergyman could be removed from office when declared innocent by his liberal congregation, presbytery, or synod. The protection of biblical preaching and the sacraments is more important than the preservation of double jeopardy protection.
Justice and Scarcity
If this protection were not available, then agents of the State, funded by compulsory taxation, could bring the same accusation against someone until a jury would convict. This would bankrupt the accused. The negative sanction of bankruptcy would replace the negative sanction of a declared penalty.(47) The jury system places a legal boundary around the State. The State cannot lawfully bring further economic sanctions against a person who has been declared innocent by a jury of his peers.
We live in a world of limited resources. We have only so much time, so much money, and so many lawyers to defend us. By making the jury's declaration of "not guilty" a final declaration, we announce that we cannot spend unlimited resources to convict an individual. This acknowledges that we must live with imperfect justice.(48) It acknowledges that we must live with cheaper justice. Finally, it acknowledges that one of our goals is swift justice. We can get these cases settled, though not perfectly. This also means that the local jury's power of the veto in civil justice always remains at the local level. This is recognized in Anglo-American civil jurisprudence. No court, no king, no civil magistrate can overcome this veto under common law.(49) This makes the jury the most important single Anglo-American civil institution for the preservation of liberty against unwarranted extensions of power by a central government.
By placing fundamental power in the hands of local juries and local courts, biblical law increases the likelihood that the principles of the law will be best known and best applied at the local level, where they will be applied first. It also means that local citizens have a great responsibility to understand and master the application of biblical legal principles to historical circumstances. The local citizen who applies the universal principles of biblical law to his local circumstances is the linchpin of the whole biblical justice system.
The presence of judicially well-informed local jurors leads to a greater predictability of the outcome of disputes. It also leads to greater self-government as a necessary consequence of this law. It means that these individuals in a local community will have much greater knowledge -- accurate knowledge -- of how a particular court case will result. What it means is that individuals who are unwilling to settle their disputes out of court, because of their lack of knowledge of the likely decision of that court, will be pressured to settle their disputes before coming into the court if each of them is fairly confident that he knows what that outcome will be. The individual who suspects that the outcome will be against him has a much greater incentive to settle the dispute out of court for that reason. Again, this reduces the case load in the court, and it also reduces the cost of achieving justice in the community.
We have seen that the civil jury is a fundamental agency -- perhaps the fundamental agency -- of political freedom.(50) We have seen why it keeps tyrannical bureaucracies at a distance. We have also seen why the presence of the jury reduces the cost of civil government. It also reduces the cost of settling disputes outside of courts. The jury system is central to the preservation of liberty, and it accomplishes this task on a cost-effective basis.
For this system to function properly in history, judges and jurors must be bound by a single set of universal standards. These standards are the foundation of civic righteousness. The Old Testament affirmed these standards and presented them in a form which the average citizen could understand merely by listening carefully (Deut. 31:10-13). This was crucial if the average citizen was to exercise self-government under law, and it was also crucial if the average citizen was to serve either as a juror or a judge. The New Testament affirms universal legal standards. The New Testament also affirms that all Christians in the community are to be ready to serve as judges in the community.
"Judge Not!" One of the most famous New Testament verses, in one of the most misunderstood passages, is Matthew 7:1: "Judge not, that ye be not judged." What antinomians fail to recognize is that Matthew 7:1 is followed by Matthew 7:2: "For with what judgment ye judge, ye shall be judged: and with what measure ye mete, it shall be measured to you again." We must raise this crucial question: What if we do want to receive righteous judgment? Then we must judge righteously, not abstain from judging. Matthew 7:2 establishes the legitimacy of the quest for righteous judgment. So do Matthew 7:3 and 7:4. "And why beholdest thou the mote that is in thy brother's eye, but considerest not the beam that is in thine own eye? Or how wilt thou say to thy brother, Let me pull out the mote out of thine eye; and, behold, a beam is in thine own eye?" Then comes Matthew 7:5: "Thou hypocrite, first cast out the beam out of thine own eye; and then shalt thou see clearly to cast out the mote out of thy brother's eye."
The idea behind Matthew 7:1-5 should be very clear: it is legitimate and even mandatory that we seek righteous judgment if we do not want to be brought under civil judges who exercise unrighteous judgment. First, we are to exercise self-judgment: identifying the beam in our own eye and then removing it. Second, we are to exercise legitimate and righteous judgment of our brother: warning him of the mote in his eye. In both cases, clear vision is mandatory. But the popular interpretation by Christian antinomians is that this passage prohibits making judgments. On the contrary, it make mandatory righteous judging by the saints. It also makes trial by jury mandatory: first in the church (Christian vs. Christian: I Cor. 6); then in civil government.
Can you imagine a society that would attempt to run its army or police forces in terms of the antinomians' interpretation of "judge not"? This would produce social chaos for the righteous and a free ride for lawbreakers. Nevertheless, pious Christians insist that Christians should never criticize others. If this were accepted as a valid judicial principle, it would turn over all civil government to covenant-breakers. Christians would not even be allowed to vote, for voting is a formal means of judging: the bringing of negative sanctions against poor performers in the political realm.
We should also ask: Why the metaphor of the eye in this passage? The eye in the Bible is used time and again as the metaphor of exercising judgment: evaluation and execution. "And God saw every thing that he had made, and, behold, it was very good" (Gen. 1:31a). "And thou shalt consume all the people which the LORD thy God shall deliver thee; thine eye shall have no pity upon them: neither shalt thou serve their gods; for that will be a snare unto thee" (Deut. 7:16). The eye perceives the facts around us. The eye is the metaphorical agency by which we sort the reality around us. The eye is the metaphorical agency of righteousness judgment. This is why we are told if we are lured into some sin by the eye, we are to rip the eye out (Matt. 18:9). This is not to be taken literally, but it is to show us how important it is not to misuse God's gift of vision to man.
We are no more to say "Judge not, in order that you be not judged!" than we are to say "See not, in order that you be not lured into sin!" These verses teach the very opposite: "Judge righteously, in order that you may be judged righteously," and "sin not, in order that you may see clearly." It is by means of the metaphorical eye that we are to exercise judgment in history. Yes, the Scripture says to rip our eyes out, but this instruction is given in order to persuade us to exercise incorruptible vision. Sin is worse than blindness; hence, we are told by implication, "sin not," not "see not." Yes, the verse says "judge not that ye be not judged," but the goal is not to persuade us either to close our eyes, or to stop judging; the goal is to persuade us of the importance of always exercising righteous judgment in terms of God's Bible-revealed law. What the passage really says is this: when we seek righteous judgment we must do so by always exercising righteous judgment. This refers to our individual circumstances, meaning self-judgment. It also refers to our civil actions as either jurors or judges in the community.
Confession and Plea-Bargaining There is always the possibility of self-confession. Such a confession must be based on a frank and true admission of the facts. The individual must not be a mental deficient. He must also not be a known seeker of publicity. There are individuals who testify again and again to the police that they committed a particular crime, when in fact the police know that it would be impossible for this person to have committed the crime. More important, there must be no torture of an individual in order to gain a confession or information regarding criminal behavior.
Torture in the West was introduced by the Greeks and passed into Roman law.(51) It was not common in the Medieval era. It reappeared in Europe during the early Renaissance -- specifically, during the Inquisition of the thirteenth century. This had been preceded by the legal revolution of the twelfth century, when Roman civil law was reintroduced into Europe.(52) This was part of a four-fold Renaissance rediscovery process: the reintroduction of Roman civil law, torture, widespread chattel slavery,(53) and occultism.(54) The use of torture is exclusively an attribute of God. It is confined only to the life hereafter. The individual is to testify to the truth. An individual who is being tortured has a tremendous incentive to admit to anything in order to stop the pain. Thus, torture is inherently against the law of God. It encourages people to testify to falsehoods: bearing false witness.
Second, there must be no promise by the civil authorities of leniency as a result of the criminal's confession. The victim of a crime may lawfully specify a reduced penalty in his quest for a conviction, but not the State. The victim may promise to reduce the penalty, but only if the criminal confesses to the actual crime, not a lesser crime. The practice of confessing to a lesser crime in order to escape prosecution for a greater one is known in the modern world as plea bargaining. An individual should not be not allowed to testify to a lesser crime in order to save the State the cost of prosecuting him in order to convict him of a greater crime. An individual is to be brought to justice, not injustice. The State is the victim's agent, who is in turn God's agent. The victim is assigned the responsibility of bringing a covenant lawsuit into court against the suspected criminal. The State must therefore prosecute to the limit of the law.(55)
When someone plea bargains by confessing to a lesser crime, the State then announces publicly that it is satisfied. The public is not informed regarding the true degree of the individual's guilt. The degree of danger to the public is underestimated by such a public announcement by the State. Thus, the State is offering false witness. While it is true that those who commit greater crimes may escape judgment because the State does not have sufficient evidence to convict them of those crimes, it is also true that the State is not to bear false witness against a suspected criminal. The State is not to imply that the criminal committed a greater crime than he did, nor is the State entitled to insinuate that the criminal committed a lesser crime than he did. In the prosecution of the law, there is not to be a move either to excessive leniency or excessive severity: "Ye shall observe to do therefore as the LORD your God hath commanded you: ye shall not turn aside to the right hand or to the left" (Deut. 5:32). The law is to be prosecuted in terms of the suspected acts of the individual.
Rendering Judgment: A Voice of Authority Someone must pronounce judgment after the trial ends. Only a lawful authority may do this. This is the second point of the biblical covenant model: hierarchy/authority.(56) A voice of authority is inescapable in the judgments of men. The creation was spoken into existence: "Let there be. . . ." God's law was spoken into existence. We know this because the Bible says repeatedly that "God commanded Moses to say" -- i.e., announce God's laws. God spoke His sovereign word -- the ultimate and primary word -- and Moses repeated it as a secondary witness. The lawmaker acts re-creatively: discovering and announcing God's word or else denying it. He is inescapably a witness: either to the truth of God's word or against it.
God is identified in the Bible as the word (John 1:1). There is no escape from the speaking of God's word in history. Men are representative agents, so they cannot escape this obligation. There must be a voice of authority that does pronounce judgment: guilty or not guilty. It is never a question of pronouncing judgment vs. not pronouncing judgment. It is always a question of who pronounces judgment and the judgment pronounced. Silence on the part of the authority is nevertheless a judgment. The authority cannot escape responsibility by remaining silent.
Conclusion In a short essay in National Review, a politically conservative magazine, Charles Murray in 1991 offered a forecast of the United States over the final decade of the twentieth century. He is the author of Losing Ground (1984), a scholarly and highly controversial critique of the disastrous results of two decades of various Federal government welfare programs to lift poor people out of poverty. These programs have not reduced poverty; they have increased poor people's dependence on the State.(57) We should not expect this to change until the programs are scrapped or in some drastic way revised. If they remain in place, the United States faces a bleak future, he predicts.
Murray has raised a legitimate concern: his fear of the creation of a new caste society based on a rapid increase of the proportion of those U.S. citizens who are rich -- from 10 percent to 20 percent of the population. He predicts a mass exodus from the failed institutions of socialism, especially the public schools. He predicts the coming of a Latin American version of conservatism, "where to be conservative means to preserve the mansions on the hills above the slums." He contrasts this with the American heritage, "a distinctly American way of self-government and limited government." He prefers the latter. But what can be done to achieve this? His brief plan is the incarnation of Leviticus 19:15, although he does not cite the Bible: "Enforce strict equality of individuals before the law. Prohibit the state from favoring groups, including rich and influential groups. Decentralize government authority to the smallest possible unit."(58) It is gratifying to see that when all other recommendations have produced disasters, even humanists at last turn to the recommended solutions found in Mosaic law. But such a transformation is always preceded by decades of pursuing utopian humanist dreams down dead-end roads. The Bible identifies these roads as dead ends, but no one, including Christians, pays much attention to this warning.
The Bible specifies the locus of primary judicial sovereignty: the local court. This court has the benefit of better knowledge of the facts and circumstances of any alleged crime. It has a tradition of judicial decisions (precedents) that is familiar to jurors. It is made up of people who speak God's law -- jurisdiction -- with a familiar local "accent." This enables local residents to forecast more accurately what is expected of them. This reduces forecasting costs.
The jury is the culmination of a long tradition of Christian history. The jury makes possible a greater division of judicial labor. A jury is less likely to be arbitrary than a lone judge. Men can obtain justice less expensively because of the greater efficiency of a jury's collective judgment. The authority of the jury at the local level provides a counter to the decisions of professional bureaucrats.
By lodging in local courts the final authority to declare an accused person "not guilty," God's law provides a check to the centralization of political power. A distant civil government cannot impose its will on local residents without a considerable expenditure of time and money, possibly risking the public's rejection of the central government's legitimacy, the crucial resource of any government.
Summary This verse raises two issues: equality before the law and local judicial participation.
This is an affirmation of God's universal standards and local application, i.e., casuistry.
Politics is local.
Politics is an aspect of the civil judicial order: the office of judge.
The jury is central: the authority to declare guilt or innocence, especially the latter, where the declaration is final.
Biblical courts are at bottom local.
Authority moves from lower courts to higher (Ex. 18).
Primary responsibility resides at the local level, where general law is applied to local circumstances.
This is where investigation of facts is least expensive.
Local jurisdiction is why tribal units were basic in Israel.
These tribal boundaries discouraged political centralization.
Tribal divisions helped to avoid corporate negative sanctions by God.
Localism offered possibilities for judicial experimentation (casuistry).
Levites were the judicial unifying factor.
Jethro recommended the division of labor in rendering judgment (Ex. 18).
The better informed judges (a limited supply) rendered decisions in the more serious or more difficult cases.
Rationing is accomplished in two ways: price competition or standing in line.
Decentralization multiplied the number of lines: 78,600 lines in Jethro's day, Rashi (11th century) estimated.
The division of labor makes it less expensive to identify and recruit specialized knowledge.
The Trinity is a committee.
A human committee performs best when it is assigned a veto function.
Committees do not create efficiently because precise, appropriate sanctions are too difficult to apply to collectives.
A committee must establish boundaries of authority and then monitor performance and apply sanctions.
The division of labor is limited by the extent of the market.
God wants an extensive division of judicial labor: geographically, chronologically, and culturally.
This process of kingdom extension begins with the local court.
Totalitarianism seeks to erase and absorb local judicial and cultural authority.
The priesthood -- civil (elders) and ecclesiastical -- declared the law in Mosaic Israel.
Civil rulership is plural because ecclesiastical rulership is plural.
The jury is the fundamental agency of the local court.
The biblical legal basis of the jury is the priesthood of all believers.
Popular sovereignty in Athens destroyed the judicial system.
The biblical jury is to apply biblical law to specific cases, not create new law.
By prohibiting double jeopardy, common law acknowledges the permanence of God's authoritative declaration: "Not guilty."
Satan cannot bring old accusations against anyone after God has issued His definitive declaration of innocence.
The law against double jeopardy resolves cases in history and relieves the accused: worry and new legal costs.
The local citizen who can apply God's general law to individual circumstances is the kingpin of the judicial system.
The jury is a fundamental agency of political freedom.
If we want to be judged righteously, we must judge righteously.
Those who refuse to seek righteous judgment will be brought under unrighteous judgment.
Confession is valid, but not torture.
Plea bargaining is illegitimate.
Someone must pronounce judgment: an authorized representative agent of the court.
Footnotes:
1. See Chapter 14.
2. Gary North, Moses and Pharaoh: Dominion Religion vs. Power Religion (Tyler, Texas: Institute for Christian Economics, 1985), ch. 14.
3. This office is sometimes regarded by political analysts as the second most powerful in the U.S. after the Presidency.
4. On the 60-year transformation of the Massachusetts General Court into a purely legislative body, see Appendix F: "The Pig That Changed American Government."
5. A war against the authority of the Anglo-American jury system has been in progress for over three centuries. As American political life has grown more centralized since the Civil War (1861-65), the rights of juries have been challenged by civil prosecutors. The French legal system, under the Napoleonic Code, assigns judges to direct juries in their deliberations.
6. Aaron Wildavsky, The Nursing Father: Moses as a Political Leader (University, Alabama: University of Alabama, 1984), p. 112.
7. There were two exceptions: 1) land that had been vowed for use by a priest but then was leased by the vow-taker to someone else; 2) land that had been vowed for a priest which was then voluntarily forfeited by the heirs at the time of the jubilee (Lev. 27:20-21). See Chapter 37, below.
8. The "inner circle" of influence or power is therefore at the top of the organizational pyramid, if not formally, then at least informally.
9. Rabbi Solomon (Shlomo) Yizchaki.
10. His reasoning: 600 at the top -- judges of thousands (600,000 men divided by 1,000); 6,000 in the upper middle -- judges of hundreds (600,000 men divided by 100); 12,000 in the lower middle -- judges of fifties (600,000 men divided by 50); and 60,000 lower court judges -- judges of tens (600,000 men divided by 10). Chumash with Targum Onkelos, Haphtaroth and Rashi's Commentary, A. M. Silbermann and M. Rosenbaum, translators, 5 vols. (Jerusalem: Silbermann Family, [1934] 1985 [Jewish year: 5745]), II, p. 95. Rashi served as a rabbinic judge, and difficult cases were continually sent to him from Germany and France. Heinrich Graetz, History of the Jews, 5 vols. (Philadelphia: Jewish Publication Society of America, [1894] 1945), III, p. 287.
11. Not entirely a negative sanction. See my comments in The Dominion Covenant: Genesis (2nd ed; Tyler, Texas: Institute for Christian Economics, 1987), ch. 15: "The World Trade Incentive."
12. Friedrich A. Hayek, Individualism and Economic Order (University of Chicago Press, 1948), chaps. 2, 4. Cf. Gerald P. O'Driscoll, Jr., Economics as a Coordination Problem: The Contributions of Friederich A. Hayek (Kansas City, Kansas: Sheed Andrews and McMeel, 1977).
13. Augustine, On the Trinity (A.D. 400), Bk. V; in Philip Schaff (ed.), A Select Library of the Nicene and Post-Nicene Fathers, vol. 3 (Grand Rapids, Michigan: Eerdmans, [1887] 1978).
14. Cited by Thomas Sowell, Knowledge and Decisions (New York: Basic Books, 1980), p. 24. The remark is sometimes attributed to Charles F. Kettering, the inventive genius at General Motors in the 1920's. When informed that Lindburgh had flown the Atlantic alone, he supposedly replied: "Let me know when a committee does it." Kettering was an extreme individualist did not fit into Alfred Sloan's brilliantly conceived organizational structure. His enormous productivity bought him independence from Sloan's task-based system of management. Peter F. Drucker, Management: Tasks, Responsibilities, Practices (New York: Harper & Row, 1974), p. 411.
15. Ibid., p. 56.
16. The creativity of the U.S. Constitutional Convention of 1787 was unique. It was closed to the public, and its attendees were oath-bound not to discuss its deliberations during their lifetimes, which none of them did, including the anti-Federalists who had attended. Far more representative of the productivity of political committees were the results of the various constitutional conventions of France, 1789-92.
17. The development of a small, unpiloted drone plane equipped with a television camera, a technology deployed first in the 1982 Israeli war in Lebanon, in a war primarily fought between Syrian and Israeli tanks, was a milestone. Central headquarters could see the entire battlefield on screen.
18. Sowell, Knowledge and Decisions, p. 17.
19. Irving A. Agus, Urban-Civilization in Pre-Crusade Europe, 2 vols. (New York: Yeshiva University Press, 1968), is a study of these cases in the medieval period.
20. Introduction, The Principles of Jewish Law, edited by Menachem Elon (Jerusalem: Keter, [1975?]), col. 13.
21. "Computer Digests the Talmud to Help Rabbis," New York Times (Nov. 24, 1984).
22. This inheritance has broken down in the twentieth century, as Reform Judaism and even Conservative Judaism have departed from Talmudic law.
23. Gary North, Healer of the Nations: Biblical Blueprints for International Relations (Ft. Worth, Texas: Dominion Press, 1987), ch. 3.
24. The sign language of the plains Indians of North America was such a cross-boundary social institution. Members of widely dispersed tribes could communicate with each other by means of the limited grammar and vocabulary of hand signs. This language was still in use in the early twentieth century. The U.S. Army's master sign linguist in the World War I era was Col. Tim McCoy, who in the 1930's went to Hollywood and became a "star" in B-grade Westerns.
25. Van Til writes: "As part of the saving plan of God the law was absolutely other than the code of Hammurabi or any other law that expressed `tribal experience' up to that time. We will not seek to debate about the similarities and dissimilarities between the law that Moses gave and the laws of other nations. We expect a great deal of similarity. We could hold again that even if there had been existing somewhere a code identical in form to the code of Moses, the two would still have been entirely different as to their meaning and interpretation. As a matter of fact, there is no law formulated among the nations outside the pale of Israel that demands absolute obedience of man, just as there is nowhere a story that tells man simply that he is the creature of God and wholly responsible to God. Thus the absolute otherness of Moses and Christ's interpretation of the past and of the present can only be cast aside by those who are bound to do so by virtue of their adherence to a metaphysical relativism." Cornelius Van Til, Psychology of Religion (Syllabus, Westminster Theological Seminary, 1961), p. 124.
26. See John Calvin, Institutes of the Christian Religion, IV:XX:31.
27. Robert A. Nisbet, The Quest for Community (New York: Oxford University Press, 1953), ch. 5.
28. Exodus 30:14.
29. The best example is Deborah (Jud. 4).
30. Gary DeMar, Ruler of the Nations: Biblical Blueprints for Government (Ft. Worth, Texas: Dominion Press, 1987), ch. 4.
31. Gary North, Political Polytheism: The Myth of Pluralism (Tyler, Texas: Institute for Christian Economics, 1989), ch. 2.
32. Lawrence M. Friedman, A History of American Law (New York: Simon & Schuster, 1973), p. 135.
33. Friedman writes: "There is good reason to believe that the law of evidence tightened considerably between 1776 and the 1830's. Judging from surviving transcripts of criminal trials, courts had rather loose attitudes toward evidence around 1800. . . . Opposing counsel did not meekly wait their turn to cross-examine. Rather, they broke in with questions whenever they wished." Ibid., pp. 134-35.
34. Gary North, Tools of Dominion: The Case Laws of Exodus (Tyler, Texas: Institute for Christian Economics, 1990), ch. 4.
35. James B. Jordan, The Law of the Covenant: An Exposition of Exodus 21-23 (Tyler, Texas: Institute for Christian Economics, 1984), p. 232.
36. Aristotle, Politics, 1274a. The Politics of Aristotle, translated by Sir Ernest Barker (New York: Oxford University Press, [1946] 1958), p. 88. Cf. John P. Dawson, The History of Lay Judges (Cambridge, Massachusetts: Harvard University Press, 1960), p. 13. Cited by Daniel C. Murphy, "The Effect of Recent Developments Upon the Political Function of Trial by Jury," M.A. Thesis, University of Virginia, 1981, p. 5.
37. Politics, 1274a; ibid., p. 89.
38. Gustave Glotz, The Greek City and Its Institutions (New York: Barnes & Noble, [1929] 1969), p. 246.
39. Ibid., p. 256. The jurors had to swear in advance not to cancel any private debts, redistribute lands and houses of Athenians. They also swore not to readmit anyone sent into exile, vote for a tyrant or an oligarch, or accept a bribe. Ibid., p. 239.
40. Ibid., p. 255.
41. Ibid., p. 263. Aristotle wrote: "The people, who had been the cause of the acquisition of a maritime empire during the course of the Persian wars, acquired a conceit of themselves; and in spite of the opposition of the better citizens they found worthless demagogues to support their cause." Politics, 1274a.
42. Ibid., pp. 296-98.
43. Ibid., pp. 299-301.
44. The practice first began in Great Britain in 1662, when the Scottish Parliament voted secretly (in disguised hand) on the Billeting Act. This act was repudiated by Charles II. The Secret ballot was not used again by the Scottish Parliament until 1705. In the United States, the use of the secret ballot was introduced in the New England colonies, and in Pennsylvania, Delaware, and the two Carolinas at the time of the American Revolution, beginning in 1775. See "Ballot," Encyclopedia Britannica, 11th edition (New York: Encyclopedia Britannica, Inc., 1910), III, pp. 279-81.
45. Greg L. Bahnsen, "Double Jeopardy: A Case Study in the Influence of Christian Legislation," Journal of Christian Reconstruction, II (Winter, 1975-76), pp. 44-45.
46. This protection ended in the United States in April, 1993, when two Los Angeles police officers were convicted by a Federal court for the 1991 beating of Rodney King. They had been declared innocent the previous May in a state court. That 1992 decision had set off the worst race riot, in terms of numbers killed by the rioters and people defending their property, in twentieth-century U.S. history: over 50 dead. They were not killed by the police or the U.S. military who had been called in late in the rioting.
47. When a grand jury decides to indict someone, it is in effect declaring him guilty. It will cost him a small fortune to defend himself. Only if the prosecuting agency of civil government were compelled by law to reimburse him for his expenses if he is subsequently declared innocent, including the value of his lost time, would the present legal order be just.
48. Macklin Fleming, The Price of Perfect Justice: The Adverse Consequences of Current Legal Doctrine on the American Courtroom (New York: Basic Books, 1974).
49. Anglo-American admiralty law is different. The British in the eighteenth century used admiralty law in their attempt to avoid local colonial juries that refused to convict smugglers -- a problem that the central government had encountered as early as the reign of Henry VIII. Charles M. Andrews, The Colonial Period of American History, 4 vols. (New Haven, Connecticut: Yale University Press, [1938] 1964), IV, England's Commercial and Colonial Policy, pp. 223-24. This battle began in earnest in the colonies in 1696 with Parliament's passage of "An Act for preventing Frauds and regulating Abuses in the Plantation Trade," which extended the jurisdiction of the vice-admiralty courts in the colonies. Ibid., IV, p. 160.
50. Magna Carta's principle of trial by a jury of one's peers (1215) antedated by over six centuries the principle of universal suffrage by secret ballot. The American territory of Wyoming introduced the vote to women in 1869. Wyoming became a state in 1890.
51. Edward Peters, Torture (New York: Basil Blackwell, 1985), ch. 1.
52. Ibid., ch. 2. Peters writes: "The legal revolution took more than a century to be accomplished. It appears that its new procedure was generally in place before torture became a part of it." Ibid., p. 45.
53. This began on the Atlantic islands in the mid-1400's: sugar production. William D. Phillips, Jr., "The Old World background of slavery in the Americas," in Slavery and the Rise of the Atlantic System, edited by Barbara L. Solow (New York: Cambridge University Press, 1991), ch. 2.
54. Edgar Wind, Pagan Mysteries in the Renaissance (London: Faber & Faber, 1958); D. P. Walker, Spiritual and Demonic Magic from Ficino to Campanella (London: Warburg Institute, 1958); Francis A. Yates, Giordano Bruno and the Hermetic Tradition (New York: Vintage, [1964] 1969).
55. Gary North, Victim's Rights: The Biblical View of Civil Justice (Tyler, Texas: Institute for Christian Economics, 1990).
56. Rendering authoritative covenantal judgment is a covenantal act, and therefore civil judgment conforms to the five points of the biblical covenant model. See Appendix G: "The Covenantal Structure of Judgment."
57. Charles Murray, Losing Ground: American Social Policy, 1950-1980 (New York: Basic Books, 1984).
58. Charles Murray, in the composite article, "The Shape of Things to Come," National Review (July 8, 1991), p. 30.
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