Appendix G THE COVENANTAL STRUCTURE OF JUDGMENT 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).
We are called in this verse to exercise righteous judgment. This means that God has given us standards of righteousness. All judges are to be judged by the cosmic Judge of judges. We are required to regard God as the final Judge. When we exercise judgment, whether in the sense of self-government or in the sense of civil judgment, we must bear in mind that God is watching and recording all that we do. The creation of a righteous civil order is necessarily based on a presumption of God as the final Judge. The rejection of this presumption leads inevitably to the destruction of the judicial foundations of a righteous civil order.
Put another way, the ideal of civil theocracy -- the public authority of God's Bible-revealed law over the civil order -- is an extension of the doctrine of God's absolutely sovereign rule over history and eternity. This is why secular man rejects biblical theocracy; he prefers democracy: the rule of autonomous man. This is also why Christians who reject civil theocracy as a judicial ideal generally reject the Calvinist doctrine of the absolute sovereignty of God and increasingly reject any strong emphasis in preaching on the doctrine of eternal punishment. The triumph of the Renaissance-Enlightenment ideal of autonomous man and autonomous politics has captured the minds of the vast majority of Protestant Christians. They are totally ashamed of the ideal of civil theocracy and somewhat embarrassed by the doctrine of hell.(1) Christ is acknowledged as King of kings and Judge of judges, but only in the world beyond the grave. Until then, they affirm, man is at least partially sovereign over history ("free will") and totally sovereign over politics.
Religion and the Social Order The social order is not a product of the civil order. It is the product of religion.(2) It is much broader than politics. But the social order must be defended by law. This is why the civil order must be structurally and judicially consistent with the social order. If such consistency is lacking, there will be social conflict, leading ultimately either to tyranny or anarchy: the radical one or the radical many. There is such consistency in a biblical social order, which rests on the doctrine of the Trinity: the equal ultimacy of the one (the Godhead) and the many (three Persons). Rushdoony writes of the Chalcedon creed (451 A.D.): "Thus the equal ultimacy of the one and the many was further defended. The truth about life was neither unity nor particularity, neither social atomism nor totalitarianism, but rather the equal importance of both the one and the many. The Trinity, three persons, one God, made impossible any legitimate Christian totalitarianism or atomism: the one and the many are equally ultimate in the triune God."(3) This is why it is a denial of the biblical foundations of social order to allow those who do not publicly affirm by formal oath the existence of the God of the Bible to impose political and judicial sanctions on those who do.(4)
To understand the true nature of any social order, we must understand the covenantal structure of judgment. Because the biblical covenant has five parts, the structure of judgment is in five parts. This essay presents the biblical model that should be used to evaluate the judicial orders of rival societies.
I. The Absolute Sovereignty of God in Judgment God is transcendent. He is not an aspect of the creation. He is present with it; He is not immanent or immersed in it. This is point one of the biblical covenant model: transcendence. God created the universe. It is dependent on Him. God is the final Judge because God is the Creator. He is sovereign over creation because He produced creation out of nothing. The autonomous power of His sovereign creative word created all things: "Let there be. . . ." Therefore, the autonomous power of His sovereign judicial word governs all things. The denial in the West of God's six-day creation, beginning in the eighteenth century, was followed decade by decade by a denial of God's law and sovereign judgeship. This development should surprise no one. That neo-evangelical theologians who never affirmed the six-day creation are today equally unwilling to affirm the doctrine of hell should also surprise no one.(5)
The structure of the creation reflects the very being of God: it is both one and many.(6) The creation is diverse, yet it is unified under the sovereignty of one God. The creation was originally undeveloped, though originally perfect.
The creation is sustained by God: the doctrine of providence. Nature is not impersonal. It is totally personal.(7) Men are to begin with God as the foundation of their social theories.
II. Constitutional Legitimacy The second point of the biblical covenant model is hierarchy/authority. God possesses lawful authority over man because God is the Founder. He is the Founder of the covenant. He announces a binding covenant in history. In political theory, we call this fundamental covenant a constitution. The constitution sets forth the fundamental law of the society: point three of the biblical covenant model. The covenant is, in the words of Meredith G. Kline, the treaty of the great king.(8) This constitution is the legal foundation of all subsequent legislation and judicial interpretation. It is the positive source of legitimacy of all civil government.(9) It serves as a negative restraining factor in the administration of civil justice.(10) That is, it provides judicial boundaries on State officials. It also provides the rules of interpretation that must govern all of the courts and juries in the land. These rules of interpretation are two-fold. First, they are moral: good vs. evil. Second, they are procedural: predictable vs. unpredictable.
There must be consistency between these two aspects of the judicial rules, and there must be widespread confidence in this consistency if people are to exercise self-government. On the one hand, if they believe that the judicial system is predictable (formally rational) but ethically corrupt, they will exercise self-government in ways that are inconsistent with the stated goals of the social order. They will seek ways to "beat the system" legally by using the formal rules of the judicial system to achieve their own personal ends -- ends that are in conflict with the society's stated ethical goals.(11) On the other hand, if they perceive the legal system as ethical (substantively rational) but judicially unpredictable and arbitrary, they will be unable to exercise self-government consistent with the stated goals of the social order. They will not trust the civil courts. They will not be able to understand the operations of the judicial system and its behavioral requirements for public order. They will not know what to expect from fellow citizens, since everyone is in the dark regarding what the courts will or will not enforce. Conclusion: for the maintenance of long-term social order, there has to be consistency between the fixed ethical requirements for social order and the court system's rules of procedure. Biblical law alone provides the judicial foundations of such a consistent legal order. Secularism does not.(12) Biblical law must provide legitimacy.
The issue of legitimacy is the most important aspect of social theory, political theory, and legal theory. Everything hinges on it. A social order cannot long exist without legitimacy: public confidence that the order is in basic conformity to fundamental ethical principles. Also needed is public confidence that right makes might, i.e., that righteousness will triumph institutionally in the long run. There must be widespread faith in the inherent rightness of the existing legal framework of society, and therefore faith that the social order will persevere through history as a result of its inherent rightness. In other words, there must be faith in the covenantal coherence of the social order: 1) a sovereign force (personal or impersonal) guarantees that if 2) those judicial agents who in history represent simultaneously both the force and the citizenry are faithful to 3) the force's revealed fundamental laws and norms, 4) bringing the State's negative sanctions against evil-doers, then there will be 5) long-term survival and prosperity for those under the society's jurisdiction. Where any of these aspects is lacking, or believed to be lacking, the social order suffers a decline in legitimacy. So does the political order that represents it judicially.(13)
This is why constitutional theory is central to both social and political order. The constitution enunciates the covenantal principles of the society. It is inescapably a judicial document. Moses, as the supreme representative agent, made a constitutional declaration in Deuteronomy 4. This declaration presented the legal foundations of Israel's legitimacy, both nationally and internationally (Deut. 4:1-10).
III. The Establishment of Legal Boundaries A law necessarily excludes certain actions. It establishes moral boundaries: point three of the biblical covenant model -- ethics. The biblical legislative model is the law which prohibited Adam's access to the tree in the garden: "No Trespassing!" When Adam violated this boundary, God extended its boundaries: the edges of the garden. "So he drove out the man; and he placed at the east of the garden of Eden Cherubims, and a flaming sword which turned every way, to keep the way of the tree of life" (Gen. 3:24). This boundary removed from Adam the ability to transgress it without dying on the spot. Both of these boundaries restricted Adam's legal sphere of action. The initial boundary served as a test of his covenantal faithfulness. The second one did not, or at least not to the same degree. The tree had no visible negative sanction attached to it; the doorway to the garden did.
As the covenant-keeper matures judicially, he is supposed to apply the details of God's revealed law more self-consciously. Every area of life is to be brought progressively under covenant-keeping man's dominion. Why everything? Because of this inescapable fact: everything we think or do apart from redeeming grace is under the reign of sin. Therefore, everything we think or do is going to be judged at the final judgment. Nothing in history is outside of God's final judgment. Not what we do: "For God shall bring every work into judgment, with every secret thing, whether it be good, or whether it be evil" (Eccl. 12:14). Not what we say: "But I say unto you, That every idle word that men shall speak, they shall give account thereof in the day of judgment" (Matt. 12:36). Not what we think: "But I say unto you, That whosoever looketh on a woman to lust after her hath committed adultery with her already in his heart" (Matt. 5:28).
But if everything is going to be judged by God at the end of time, then everything is under His comprehensive law today. There cannot be an infraction apart from a law against the act. Paul writes: "For I was alive without the law once: but when the commandment came, sin revived, and I died. And the commandment, which [was ordained] to life, I found to be unto death. For sin, taking occasion by the commandment, deceived me, and by it slew me. Wherefore the law is holy, and the commandment holy, and just, and good" (Rom. 7:9-12). God's law is inherently unbounded: geographically, psychologically, institutionally. It applies to all of life. Redemption is also necessarily unbounded, just as sin is unbounded apart from grace. God's grace is comprehensive -- surely as comprehensive as sin's present reign.(14)
This presents a problem. God's law is concise. Life is infinitely complex. The written law does not and cannot spell out every conceivable application to every circumstance in history. Yet it applies to all of life. Thus, there will sometimes be a public action that appears to transgress the law when in fact it does not transgress it. Conversely, some acts may look legal when they are not. How can we make sense of this?
Gapless Law
To argue that every thought, word, and deed of every person in history is under God's final sanctions is to argue that God's law is gapless law. Nothing is outside it; everything is covered. Everything is inside the judicial boundaries established by God's law. All acts are necessarily judicial acts; they are therefore inescapably personal acts. The law-order by which they are evaluated is equally personal. The law is binding on man because man is made in God's image.
For a secular view of law to match biblical law's comprehensive nature, it must assert the existence of an impersonal, uncreated, yet fully developed system of generalized legal propositions. Weber describes the nature of this assertion: "According to present modes of thought it represents an integration of all analytically derived legal propositions in such a way that they constitute a logically clear, internally consistent, and, at least in theory, gapless system of rules, under which, it is implied, all conceivable fact situations must be capable of being logically subsumed lest their order lack an effective guarantee. Even today not every body of law (e.g., English law) claims that it possesses the features of a system as defined above and, of course, the claim was even less frequently made by the legal systems of the past; where it was put forward at all, the degree of logical abstraction was often extremely low."(15)
The modern form of this systematization, he says, was derived from Roman law.(16) When Roman law was revived in the late medieval era, "it strengthened that tendency of the legal institutions themselves to become more and more abstract, which had begun already with the transformation of the Roman ius civile [civil law] into the law of the Empire. As Ehrlich has properly emphasized, in order for them to be received at all, the Roman legal institutions had to be cleansed of all remnants of national contextual association and to be elevated into the sphere of the logically abstract; and Roman law itself had to be absolutized as the very embodiment of right reason. The six centuries of Civil Law jurisprudence have produced exactly this result. At the same time, the modes of legal thought were turned more and more in the direction of formal logic."(17) Step by step, brilliant summaries of the law were stripped of their context of specific cases and "raised to the level of ultimate legal principles from which deductive arguments were to be derived."(18) A new ability was needed in order to apply this abstract law: the ability to "construe" the situation in a logically impeccable way.(19) "In this way that conception of law which still prevails today and which sees in law a logically consistent and gapless complex of `norms' waiting to be `applied' became the decisive conception for legal thought."(20)
To make plausible the existence of such a legal order, the logical processes of the minds of judges have to be assumed to correspond on a one-to-one basis with the acts of men. There must be no gaps: within logic or between logic and the context of the specific act. That this requires a messianic view of man -- or at least mankind's human judges -- should be obvious. It means that the abstract principles of law must be as exhaustive as the contexts of all human action in every period and region, and the judge's mind must be equally exhaustive. That such a view of universal, abstract law has been closely associated with the rise of the Roman Empire should not be surprising. Messianic men invariably attempt to establish messianic kingdoms. The assertion of man's exhaustive knowledge leads to the assertion of man's exhaustive authority, and vice versa.
There is also the problem of historical development. If the law is gapless, how can there be change? We are back to the old antinomy between Parmenides' unchanging, comprehensive reason and Heraclitus' ever-changing historical process. Long ago, Sir Henry Maine pointed to the legal fiction of gapless English law:
With respect to that great portion of our legal system which is enshrined in cases and recorded in law reports, we habitually employ a double language and entertain, as it would appear, a double and inconsistent set of ideas. When a group of facts come before an English Court for adjudication, the whole course of the discussion between the judge and the advocates assumes that no question is, or can be, raised which will call for the application of any principles but old ones, or of any distinctions but such as have long since been allowed. It is taken absolutely for granted that there is somewhere a rule of known law which will cover the facts of the dispute now litigated, and that, if such a rule be not discovered, it is only that the necessary patience, knowledge, or acumen is not forthcoming to detect it. Yet the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. We now admit that the new decision has modified the law. The rules applicable have, to use the very inaccurate expression sometimes employed, become more elastic. In fact they have been changed. A clear addition has been made to the precedents. . . . The fact that the old rule has been repealed, and that a new one has replaced it, eludes us. . . .(21)
It is all a convenient legal fiction. "We do not admit that our tribunals legislate; we imply that they have never legislated; and yet we maintain that the rules of English common law, with some assistance from the Court of Chancery and from Parliament, are coextensive with the complicated interests of modern society."(22) There is no way theoretically to reconcile the theory of gapless law and the reality of historical development except by an appeal to the Creator as Lawgiver. Eventually, men reject what Maine calls a legal fiction. They adopt other explanations for the reliability of the "fit" between civil law and historical change: the sovereignty of the Parliament, or the Supreme Court, or the vanguard of the proletariat. Such is the fate of any legal theory that does not begin with the doctrine of cosmic personalism: the doctrine of creation.(23) The impersonal laws of the universe are said to produce the first true person in history: autonomous man.(24) Then man becomes the new god who legislates both morality and reality.(25) In legal theory, this leads to the idea of the sovereign lawmaker: either as legislator or judge. The absolutely sovereign law-giver is immanentized, and woe unto those who defy his will! The law-giver becomes totally arbitrary and highly personal. The only remotely consistent theoretical alternative is the ideal modern law-giver described by Weber: the judge as "an automaton into which legal documents and fees are stuffed at the top in order that it may spill forth the verdict at the bottom along with the reasons, read mechanically from codified paragraphs. . . ."(26) From cosmic impersonalism to judicial personalism and back to impersonalism: this is the vicious circle of judicial humanism. Such is the fate of any theory of gapless law in an autonomous universe. The only secular alternative is a theory of gap-filled law, which leads to the acceptance of the inevitability of judicial arbitrariness. Someone must fill the gaps.
IV. Fitting the Law and the Act The jury or the judge must determine the closeness of the fit between formal legislation and a public act. This is point four of the biblical covenant model: sanctions. As I have said, written law cannot be exhaustive. Jurors determine this fit re-creatively; God determines it creatively. Jurors must exercise judgment in God's name. They must act representatively. They cannot act mechanically, for the law is not mechanical. They cannot act "digitally," as a computer does, for man thinks analogically: as a creature who images God.(27) More to the point, a computer program is not in danger of eternal damnation; man is. Personalism is inescapable in all civil judgment. This stems from the fact that there is an inescapable cosmic personalism in every aspect of history. Everything is under the historical decree of God and the absolute sovereignty of God.
How can men impose their judgments personally yet judicially? How can they "make the fit" between God's revealed law and a person's public action? No event is identical to any other; no point in history is identical to any other. Thus, establishing a "perfect fit" between ever-changing history and God's unchanging law is impossible for a creature who is not omniscient. Judicial perfection eludes man. Alternatively, no historical act or event is totally unconnected with any other. There is no autonomy in the universe. The decree of God and the revealed law of God tie all events into a common history. How, then, can judges "make the fit"?
Casuistry and Intuition
Casuistry is the art of applying general law to specific cases.(28) Biblical casuistry declined rapidly in Protestant cultures after 1700, as rationalism spread into every area of life, especially judicial life.(29) Yet no one can avoid casuistry. We live under law -- either God's or someone else's. We apply general rules to specific circumstances all day long. It is never a case of "casuistry vs. no casuistry." It is always a case of some system's casuistry.(30) Rendering judgment is always overwhelmingly an intuitive process, though grounded in some view of law and action. We do not think about the relationship between law and action in every decision we make daily. We act habitually. But our habits are shaped by an implicit casuistry.
A covenant-keeping individual is required by God to have extensive familiarity with the specific details of God's law. He must also gain experience in making judgments in terms of this law. Judging begins with self-judgment. Making judgments is similar to making bread, making houses, or making anything else. Many of the skills -- probably most of them -- are too complex to be verbalized or written down. For example, there are no handbooks telling us how to ride a bicycle -- safety requirements, yes, but not the actual skills. The skilled craftsman is in a position to exercise his skills in a way that an unskilled craftsman cannot, even though the unskilled craftsman may have read a lot of books on the topic, and the skilled craftsman may be illiterate. There are no handbooks that show people how to become professional craftsmen or athletes, as distinguished from amateurs. These unique differentiating degrees of skill can be gained over long periods of practice. They cannot be measured except by actual performance. Similarly with juries: in fitting a specific law to the actual public act that is being brought into consideration by the jury, the jurors must exercise an informed intuition in order to declare a person guilty or not guilty. This skill is not formally obtained in daily life, yet juries do their work effectively. How? Because Western civilization was originally Christian, and centuries of preaching on judicial Bible texts helped to transfer the fundamentals of biblical judicial intuition -- wisdom in its widest sense -- to large numbers of people. By applying God's law in the family and the church, we are to become more skilled in serving as covenantally faithful civil jurors. This is the art of biblical casuistry.
Men must rely on intuition in order to make righteous judgments -- casuistical judgments. Intuition cannot be rationally specified. There are creaturely limits on man's thinking and his language. There will never be a limitless creature. Only the Creator is limitless. Nevertheless, we can describe the effects of intuition's operations. We can glimpse it by looking at where it isn't. Intuition is that undefinable area in between semi-fixed habit and action, between judicial law and action, between moral principle and action -- an area that cannot be specified logically or verbally. Why not? Because we cannot specify every step in any logical procedure or "chain of reasoning." The logical chain is not made up of discrete, interconnected "links." The "links" are not in fact interconnected, one to another. The chain of logic is not really a chain; it is a series of discrete, identifiable logical "markers" that we are capable of recognizing and manipulating, and which we assume are connected by inconceivably small units of logic that we cannot specify. These supposedly infinitesimal units we believe "fill in the gaps" between our leaps of reasoning, point to point. We have faith that there is a continuum linking the small mental steps that we can identify and connect analogically. The mathematician assumes that the structure of the arithmetical continuum is that of "beads on a string, but without the string."(31) He assumes what he cannot really prove or describe. So does the humanist legal theorist. There is continuity in life. This includes judicial life: law and action. This is what makes predictable law enforcement possible. The question is: What is the basis of this continuity? The Calvinist answers: "The comprehensive decree of an omniscient, absolutely sovereign God." The humanist answers: "The evolving intuition of the hypothetical mind of sovereign collective man in an evolving universe."(32)
There is also discontinuity in life. Each action is to some degree -- a scientifically unmeasurable degree -- different from any other. This means that there is a discontinuity between actions. Also, each law is unique. This means that there is a discontinuity between laws. The "gap" between our discontinuous actions, as well as the "gap" between discontinuous laws, is the area that we must judge intuitionally. For civil laws to judge the actions of individuals, there must be a "fit": a comparative absence of gaps. The smaller the gap, the more predictable the judgment. The larger the gap, the more power is transferred to the State: arbitrary law enforcement. It is the jury's task to decide behind closed doors and then publicly declare whether a particular judicial gap is sufficiently small to authorize a conviction.
(It is also the American jury's task to determine the legitimacy of the law under which the State has brought its case, although American judges no longer instruct juries on this point and have not since the late nineteenth century. In fact, judges frequently instruct jurors falsely, telling them that a jury has no right to judge the law, a lie that jurors tend to believe.(33) Judges rarely allow defense attorneys to tell this to juries at any point in the proceedings.(34) A defense attorney can be held in contempt of court for ignoring the judge's instruction to him to cease informing the jury of its Constitutional right to determine the legitimacy of any law. What was originally known as jury nullification -- the common law authority of juries to nullify the application of a law in specific court cases -- has been transformed to mean the right of judges to nullify the authority of juries in defiance of common law.(35) Excessive authority has thereby been transferred illegitimately to legislators, prosecutors, and judges. This process has accompanied and intensified the centralization of political power.)
Casuistry and Biblical Wisdom
Knowledge is a scarce economic resource. That is to say, at zero price there is more demand for it than the supply of it. Many, many errors in economic and social analysis rest on an unstated assumption that accurate knowledge is a zero-price resource.(36) On the contrary, it is expensive. This is why the advent of the computer and low-cost data storage, retrieval, and transmission has been a monumental breakthrough in men's pursuit of wealth. Management theorist Peter Drucker -- arguably America's most insightful observer, 1939-94 -- has written: "The greatest challenge of the computer industry is to learn how to build information bases, not databases."(37) He is correct about something else, a secular adaptation of what the Bible announced in Solomon's day: "Today, the real and controlling resource and absolutely decisive factor of production is neither capital nor land nor labor. It is knowledge."(38)
But we need more than knowledge; we need wisdom. Wisdom is grounded in the ethics of the word of God. We need more than techniques to convert the computer's digitally stored data into man's analogically interpreted information.(39) We need a breakthrough in man's ethical knowledge to accompany the technological breakthrough in digitally stored data-into-information. We need biblical casuistry -- the application of biblical law to historical circumstances -- and we need God's grace to conform our thoughts and actions to what we know to be true. If we do not get this, and on a widespread basis, then we face God's wrath in history: from those to whom much knowledge has been given much is expected (Luke 12:47-48).
Judicial Review
Because the constitution is the source of legitimacy for all subsequent legislation, there is no escape from the legal principle known as judicial review: point four of the biblical covenant model.(40) Someone in the hierarchy must announce the legitimacy or illegitimacy of specific pieces of legislation and also the legitimacy of the decisions of lower courts. Someone must act as the interpreter of the principles set forth as fundamental law in the constitution. There is no escape from final judgment after history, nor is there escape from the principle of judicial review in history.
The Founder has chosen a representative agent in history. This delegated agent is man. Man alone is made in God's image. He is a true, personal reflection of God. This is why he is the agent to whom God has delegated legitimate sovereignty. In calling Adam to serve as judge, God called a perfect man in history to serve as His agent. But that perfect man was immature. This means, among other things, that he was judicially immature. He had only one law that he had been given in order to serve as a restraint against him. That law was that he could not eat from a particular tree. God set a legal boundary around that tree. In order to gain maturity, Adam had to learn self-government under God. He needed time in order to mature judicially. He needed obedience to mature judicially. He needed experience to mature judicially. Obedience is a product of self-government under God. Experience to some extent must be based on one's learning the principles of judging others in one's capacity as a judge. Adam was put at the head of a household. He was given authority to exercise judgment in history over others. There can be no development of judicial maturity in history without holding some kind of office. This is why the church requires that elders in the church must be lawful rulers over their families (I Tim. 3:4-5).
There is only one final judgment. There is only one final court of appeal. But both of these are outside of history. Thus, any judicial spokesman in history cannot be absolutely sovereign. His word cannot be final. No single earthly court can legitimately command absolute obedience. This is why the biblical doctrine of judicial review, being Trinitarian and therefore plural -- family, church (local, regional, national, international), and State(41) (local, regional, national, and international) -- does not lead to the creation of absolute civil government. The decision of any supreme court can be appealed to the courts in the other lawfully sovereign realms. The decision of a final supreme court should be capable of being overruled by a combination of the legislative and executive powers. Whenever man seeks to create an institutionally unified earthly court that possesses a final word on the law, he acts messianically. The quest for a single supreme world court beyond which no appeal is legal, like the quest for a single national supreme court beyond which no appeal is legal, is a messianic quest: the quest for perfect justice.(42) It inevitably leads to a widespread disrespect for law and subsequent evasion, tyranny, revolution, and judicial breakdown.
V. Judicial Precedents and Legal Predictability If the court is not to become arbitrary in its judicial pronouncements, it must be under restraints. Restraints include the following: 1) the clarity and generality of the constitution; 2) the clarity and constitutional consistency of the written statutes; 3) the irreversible sovereignty of the jury in deciding innocence; 4) the threat of judicial review. But there is another restraint, one which is especially important in common-law countries: legal precedent. Judicial decisions are supposed to be cumulative and consistent. They are supposed to provide information to litigants regarding the ways in which courts have applied the law to specific past cases.
Because common law is primarily law based on precedents, it is sometimes called judge-made law.(43) Selecting from judicial precedents becomes a disguised means of legislating. No one has stated this more forcefully (and perhaps cynically) than the great English legal historian, A. V. Dicey. "But the appeal to precedent in the law courts merely is a useful fiction by which judicial decision conceals its transformation into judicial legislation; and a fiction is none the less a fiction because it has emerged from the Courts into the field of politics or of history. Here, then, the astuteness of lawyers has imposed upon the simplicity of historians."(44) This fiction was maintained for many centuries in Great Britain and the United States. Write Murphy and Pritchett: "It was not until well into the nineteenth century that either the British Parliament or the American Congress began to pass many statutes dealing with the everyday affairs of private citizens."(45) It took centuries before Parliament dealt with such matters as trespass, property, wills, contracts, and obligations between employers and employees.(46)
It was assumed by the founders and practitioners of the common law that the law, while not gapless, could be determined by judges by a careful study of past decisions. The "fit" between a general legal principle and the specific case could be filled in by precedents stemming from similar cases. In other words, history has continuity. There is an evolutionary development over time: law becomes more precise and more predictable as cases pile up. The assumption, of course, is that the pile of cases is itself coherent, at least in the aggregate. The judge can therefore make judicially significant connections between the facts of the case before him and the results of many similar cases in the past. The past cases are assumed to be consistent. They are presumed to be an orderly pile, not chaos in the brickyard. But modern thought affirms only chaos in the brickyard.(47) The orderliness of the pile is now assumed to be the product of the judge's mind; there is supposedly no inherent order in the facts themselves. Judicial facts are regarded as no more coherent than any other facts. Any perceived coherence is the product of the human mind. This has made an epistemological jumble of legal precedents.
Time and Eternity
We find here a manifestation of an ancient philosophical antinomy: facts vs. logic. Common law formally clings to the legal fiction of the autonomous relevance of historical fact. Civil law, meaning Roman law, clings to the legal fiction of the autonomous comprehensive mind of the statute writer. The war between the two concepts is as total as the war between Heraclitus' concept that "all is flux" and Parmenides' concept that all is fixed logic. It is the war between timeless logic and changing history. As Van Til asks: "How then could you expect that time should suddenly be able and willing to submit to the ways of eternity? On the other hand, how could you expect that Eternity should suddenly feel at home when taken into the realm of time? Far easier could you bring under one roof an old bachelor and an old maid, both of them accustomed to a life of abstraction from one another, and expect that they would get along in harmony. . . ?"(48) Common law vs. Roman law: it is the age-old humanist epistemological war between the flowing stream and the ice cube.(49) Either the river freezes, ceasing to flow, or the ice cube melts, ceasing to exist as a separate entity.
At the heart of Roman civil law was the belief that "law was precisely what that term meant, a system, closed, self-contained, and self-sustained, a neatly ordered body of principles hierarchically arranged, with the less fundamental principles logically deduced from the more fundamental. Any judicial tampering with this system, even if only a charitable effort to ease the law's commands in a particular case, was bound to do more harm than good in the long run by destroying the intellectual integrity of the entire corpus."(50) But the threat to such a "corpus" is rigor mortis: unchanging bodies are dead. How can the fixed principles of law be made relevant in history? How can an unchanging hierarchy of hypothetically rational, gapless law be applied in ever-more predictable and ever-more ethical ways to a hypothetically gapless river of ceaseless, judicially undifferentiated change? Secularism provides no consistent answer.
Secular legal theory cannot solve the problem of judicial intruders and defenders. The Roman law statute-makers resented the intrusion of the judges. The common law judges in turn resented the intrusion of the statute-makers. "For a long time, the proud judges looked at statutes with great suspicion. Statutes were unwelcome intrusions on the law, and were treated accordingly. In Continental law, all law (in theory) is contained in the codes. In common law many basic rules of law are found nowhere but in the recorded opinions of the judges."(51)
Sanctification
The biblical solution to this dilemma is the doctrine of sanctification: definitive, progressive, and final. There is not only definitive sanctification in history -- the morally perfect life, death, resurrection, and ascension of Jesus Christ -- there is also progressive sanctification: the increasing conformity of individuals and collectives to the fixed, gapless legal order established by the Creator. Through the judicial maturation of covenant-keeping men, empowered by the Holy Spirit, society progressively conforms itself to the judicial requirements of God. What Paul said of the individual applies also to collectives:
For we are saved by hope: but hope that is seen is not hope: for what a man seeth, why doth he yet hope for? But if we hope for that we see not, then do we with patience wait for it. Likewise the Spirit also helpeth our infirmities: for we know not what we should pray for as we ought: but the Spirit itself maketh intercession for us with groanings which cannot be uttered. And he that searcheth the hearts knoweth what is the mind of the Spirit, because he maketh intercession for the saints according to the will of God. And we know that all things work together for good to them that love God, to them who are the called according to his purpose. For whom he did foreknow, he also did predestinate to be conformed to the image of his Son, that he might be the firstborn among many brethren. Moreover whom he did predestinate, them he also called: and whom he called, them he also justified: and whom he justified, them he also glorified. What shall we then say to these things? If God be for us, who can be against us? He that spared not his own Son, but delivered him up for us all, how shall he not with him also freely give us all things? Who shall lay any thing to the charge of God's elect? It is God that justifieth. Who is he that condemneth? It is Christ that died, yea rather, that is risen again, who is even at the right hand of God, who also maketh intercession for us (Rom. 8:24-34; emphasis added).
The biblical view of civil law is that legislators may lawfully change existing statutes, and courts may lawfully alter the body of precedents, but only if such nullification or modification is necessary to make an existing law or custom conform to the requirements of God's revealed law. Covenant-breaking formal rationalism -- predictable evil laws -- is not a valid substitute for biblical law. Neither is a legal system based formally on biblical law in which judges have the authority to refuse to apply it. The institutional hope, then, is for juries to be composed of well-informed, covenant-keeping people. We call such a civil order a theocracy.(52)
Conclusion Rendering civil or ecclesiastical judgment is a covenantal act. It rests on the doctrine of creation and the doctrine of man as the image of God. Man is capable of thinking God's thoughts after Him. This makes it possible for men to establish connection among: 1) general principles of biblical law (the Ten Commandments), 2) the biblical case laws, 3) judicial precedents, 4) historical acts suspected of being crimes, and 5) specific negative sanctions.
The theory of gapless law is correct, but only when applied to the mind of God. He alone is omniscient, which is the underlying presupposition of a theory of gapless law. To think analogously to God, men must use intuition that is the product of two things: their study of the Bible-revealed law of God and their experience in applying God's law to specific judicial cases involving public acts. This is why only judicial covenant-keepers, meaning church members, are allowed by God to serve as civil judges in a formally covenanted holy commonwealth. This is why theocracy -- the rule of God -- has political implications. The citizen is a judge. He must render civil judgment. Only covenant-keepers are allowed to do this. Any theory of citizenship that denies this is necessarily also a theory of civil justice that denies the continuing authority of God's Bible-revealed civil law in the New Testament era.
Christian legal theory is equally at war with common law and Roman law. Common law theory assumes that coherence will emerge from a long string of judicial precedents: the sovereignty of judges in history. Roman law theory assumes that coherence is imposed by the statute-makers: the sovereignty of legislators in history. Neither assumption is correct. Coherence in legal affairs in history begins with God's omniscience and ends with God's final judgment. Without the assumption of an omniscient God who imposes His ongoing judgments over time and eternity, autonomous man's hope for coherence and justice cannot be progressively realized. Without access to the God's constitution of liberty -- His written revelation in the Bible -- mankind will not escape bondage to tyrants.
Footnotes:
1. An example of the post-World War II drift away from the Bible took place in May, 1989, at Trinity Evangelical Divinity School, near Chicago, Illinois. Trinity, with assistance from the National Association of Evangelicals, held a conference of 385 theologians, Christian leaders, and laymen: "Evangelical Affirmations/89." The goal of conference organizers Carl F. H. Henry and Kenneth Kantzer was to develop a document defining the word "evangelical." See Evangelical Affirmations, edited by Kantzer and Packer (Grand Rapids, Michigan: Zondervan Academie, 1990).
At this conference, a debate broke out over the doctrine of "annihilationism," also known as "conditionalism," a doctrine held by Seventh-Day Adventists, Jehovah's Witnesses, Christadelphians, etc. It teaches that there is only annihilation for unregenerate sinners in eternity -- no hell or lake of fire. Theologian J. I. Packer adamantly pressed the assembly to adopt a statement affirming the traditional creedal position of eternal punishment, but to no avail. The voice vote was split, but the chairman declared that those refusing to include a positive statement (i.e., that hell exists) on such a negative idea (i.e., that God torments covenant-breakers) had been in the majority. In the section of the book that lists the evangelical affirmations, under "Second Coming and Judgment," there is no reference to the lake of fire. It states merely that "Unbelievers will be separated eternally from God" (p. 36). For an account of this conference, see World (June 3, 1989), p. 9.
2. R. J. Rushdoony, Foundations of Social Order: Studies in the Creeds and Councils of the Early Church (Fairfax, Virginia: Thoburn Press, [1968] 1978).
3. R. J. Rushdoony, The One and the Many: Studies in the Philosophy of Order and Ultimacy (Fairfax, Virginia: Thoburn Press, [1971] 1978), p. 164.
4. Gary North, Political Polytheism: The Myth of Pluralism (Tyler, Texas: Institute for Christian Economics, 1989), ch. 2.
5. See footnote #1.
6. Rushdoony writes that "we have a temporal one and many in the created universe." Rushdoony, The One and the Many, p. 10.
7. Gary North, The Dominion Covenant: Genesis (2nd ed.; Tyler, Texas: Institute for Christian Economics, 1987), ch. 1: "Cosmic Personalism."
8. Meredith G. Kline, The Treaty of the Great King: The Covenant Structure of Deuteronomy (Grand Rapids, Michigan: Eerdmans, 1963).
9. According to Max Weber, "First, and in a positive sense, government must have a legitimate basis for its own jurisdiction; a modern government exercises its functions as a `legitimate' jurisdiction, which means legally that it is regarded as resting on authorization by the constitutional norms of the state." Max Weber, Economy and Society: An Outline of Interpretive Sociology, edited by Guenther Roth and Claus Wittich (New York: Bedminster Press, [1924] 1968), p. 644. This is the English translation of the fourth edition of Weber's incomplete and posthumously published work, Wirtschaft und Gesellschaft.
10. Weber continues: "Secondly, and in a negative sense, the limitations on the power of the state by law and vested rights create those restraints upon its freedom of action to which it must adjust itself." Idem.
11. A classic example of this was Vladimir Bukovsky's successful attempt in the early 1970's, as a prisoner in a Soviet concentration camp, to use the camps' formal rules of written protest to paralyze the whole operation of the camps. He tells this story in his book, To Build a Castle: My Life as a Dissident (New York: Viking, 1979), pp. 37-40. I summarize this incident in my book, Moses and Pharaoh: Dominion Religion vs. Power Religion (Tyler, Texas: Institute for Christian Economics, 1985), pp. 288-90.
12. It was Max Weber's insight, as the premier humanistic social theorist of the twentieth century, that in modern secular society, there is no consistency possible in judicial rationalism. Substantive (ethical) rationalism is in permanent and irreconcilable dialectical tension with formal (procedural) rationalism. This is true not just in the legal order; it is equally true of the economic order, he argued. On his dialectical legal theory, see Weber, "Formal and Substantive Rationalization -- Theocratic and Secular Law," Economy and Society, pp. 809-38. On the twin developments of capitalism and its relationship to a formal legal order vs. socialism and its relationship to a substantive legal order, see Economy and Society, pp. 100-7, 111, 224-25, 165, 856. On the whole question of Weber's dialectical analysis, see Gary North, "Max Weber: Rationalism, Irrationalism, and the Bureaucratic Cage," in North (ed.), Foundations of Christian Scholarship: Essays in the Van Til Perspective (Vallecito, California: Ross House Books, 1976), pp. 141-46.
13. Communist societies in Eastern (Central) Europe suffered a monumental and unprecedentedly rapid (for peacetime) public breakdown in late 1989, to a large degree because of the public's loss of faith in all five aspects of the covenantal order. Power alone could no longer maintain the Communist system. Might was visibly in conflict with right.
14. Gary North, "Comprehensive Redemption: A Theology for Social Action" (1981), in North, Is the World Running Down? Crisis in the Christian Worldview (Tyler, Texas: Institute for Christian Economics, 1988), Appendix C; Kenneth L. Gentry, Jr., The Greatness of the Great Commission: The Christian Enterprise in a Fallen World (Tyler, Texas: Institute for Christian Economics, 1990).
15. Weber, Economy and Society, p. 656.
16. Idem. Weber did his earliest academic work in the field of Roman law.
17. Ibid., p. 854.
18. Idem.
19. Ibid., p. 855.
20. Idem.
21. Sir Henry Maine, Ancient Law: Its Connection with the Early History of Society and its Relation to Modern Ideas (New York: Dorset, [1861] 1986), p. 26.
22. Ibid., p. 27.
23. North, Dominion Covenant, ch. 1.
24. Ibid., Appendix A: "From Cosmic Purposelessness to Humanistic Sovereignty."
25. North, Is the World Running Down, ch. 1.
26. Weber, Economy and Society, p. 979.
27. One of the most impressive intellectual failures in history was the attempt by mathematical genius Alan Turing to specify the conditions of a digital mechanical logic that would "think" as a human brain thinks. He died a suicide in 1954, although his homosexuality also probably contributed to his psychological demise. A comprehensive biography is Andrew Hodges' Alan Turing: The Enigma (New York: Touchstone, [1983] 1984). See especially Chapter 7. In debating with Turing, mathematician M. H. A. Newman appealed to man's analogical thinking in describing the role of imagination in mathematics. Ibid., p. 451.
28. Gary North, Tools of Dominion: The Case Laws of Exodus (Tyler, Texas: Institute for Christian Economics, 1990), pp. 99-104.
29. Thomas Wood, English Casuistical Divinity in the Seventeenth Century (London: S.P.C.K., 1952).
30. North, Tools of Dominion, pp. 763-67.
31. Nicholas Georgescu-Roegen, The Entropy Law and the Economic Process (Cambridge, Massachusetts: Harvard University Press, 1971), p. 65. See his discussion of the continuum, time, being and becoming, mind, and "simple infinity": pp. 64-76.
32. The Arminian does not answer, since he does not bother himself with such "unspiritual" academic questions.
33. In a common law jury room, no one can tell the jury what to do. It is as autonomous legally as the U.S. Supreme Court.
34. The closing statement of Paul Newman in the movie, The Verdict, in which he reminds the jury of its right to consider the legitimacy of the law, was highly dramatic and altogether fictional. No judge would have permitted him to continue. The judge would have instructed the jury to disregard Newman's remarks, not because they were false but because they were true.
35. In a Texas county courtroom in which I had been called as part of a large group to be a candidate to serve on a jury, the judge asked each prospective juror to stand up if he or she believed that a jury has the right to decide the law as well as the facts. He threatened to dismiss any juror who stood up. I refused to stand up because he had no moral authority before God to make such an inquiry. Any American juror has the right to remain silent until he gets into the jury room, and he then has the right to "hang" the jury -- no verdict -- if he believes that a law is immoral or unconstitutional. The juror is sovereign, not the judge.
36. Thomas Sowell, Knowledge and Decisions (New York: Basic Books, 1981). I regard this book as the single most important work in political economy of my generation. It shows the importance in so may different areas of the idea that there is a price for knowledge. Solomon's injunction, "get wisdom," is not a zero-price injunction. "Wisdom is the principal thing; therefore get wisdom: and with all thy getting get understanding" (Prov. 4:7). "How much better is it to get wisdom than gold! and to get understanding rather to be chosen than silver!" (Prov. 16:16). "Wherefore is there a price in the hand of a fool to get wisdom, seeing he hath no heart to it?" (Prov. 17:16).
37. "According to Peter Drucker," ASAP [As Soon As Possible] (March 29, 1993), p. 90.
38. Ibid., p. 94.
39. Drucker comments: "We need an economic theory that puts knowledge into the center of the wealth-producing process." Idem. The Austrian theory of entrepreneurship comes closest to performing this task. (Drucker is an Austrian economist, but not an Austrian School economist.) Yet even the Austrian theory of entrepreneurship, most notably Israel Kirzner's extension of it, places nonrational insight -- Kant's noumenal realm -- at the heart of the economic process. This noumenalism has become self-conscious irrationalism in the writings of G. L. S. Shackle and Ludwig Lachmann. See North, Tools of Dominion, pp. 1123-31.
40. North, Political Polytheism, ch. 10.
41. In the United States, executive, legislative, and judicial.
42. Macklin Fleming, The Price of Perfect Justice: The Adverse Consequences of Current Legal Doctrine on the American Courtroom (New York: Basic Books, 1974).
43. Walter F. Murphy and C. Herman Pritchett, Courts, Judges, and Politics: An Introduction to the Judicial Process (2nd ed.; New York: Random House, 1974), p. 5.
44. A. V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed.; Indianapolis, Indiana: LibertyClassics, [1915] 1982), p. cxxxvii.
45. Murphy and Pritchett, Courts, p. 5.
46. Ibid., p. 6.
47. Bernard K. Forscher, "Chaos in the Brickyard," Science (Oct. 18, 1963), p. 339.
48. Cornelius Van Til, A Survey of Christian Epistemology, vol. II of In Defense of Biblical Christianity (Den Dulk Foundation, 1969), p. 41.
49. Van Til's ice cube analogy is found in ibid., p. 35.
50. Murphy and Pritchett, Courts, p. 4.
51. Lawrence M. Friedman, A History of American Law (New York: Simon & Schuster, 1973), pp. 17-18.
52. North, Political Polytheism, ch. 2.
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