7

GUARDIAN OF THE CIVIL OATH

And the LORD spake unto Moses, saying, If a soul sin, and commit a trespass against the LORD, and lie unto his neighbour in that which was delivered him to keep, or in fellowship, or in a thing taken away by violence, or hath deceived his neighbour; Or have found that which was lost, and lieth concerning it, and sweareth falsely; in any of all these that a man doeth, sinning therein: Then it shall be, because he hath sinned, and is guilty, that he shall restore that which he took violently away, or the thing which he hath deceitfully gotten, or that which was delivered him to keep, or the lost thing which he found, Or all that about which he hath sworn falsely; he shall even restore it in the principal, and shall add the fifth part more thereto, and give it unto him to whom it appertaineth, in the day of his trespass offering. And he shall bring his trespass offering unto the LORD, a ram without blemish out of the flock, with thy estimation, for a trespass offering, unto the priest: And the priest shall make an atonement for him before the LORD: and it shall be forgiven him for any thing of all that he hath done in trespassing therein (Lev. 6:1-7).

The theocentric meaning of this passage is that theft is a transgression against God. God is here identified as the primary victim of crime: "If a soul sin, and commit a trespass against the LORD. . . ." This principle is fundamental to biblical law. It is therefore not sufficient for a thief to make restitution to his earthly victim; he must also make restitution to God.

This passage continues the laws governing trespasses and guilt (reparations) offerings. The sin in this instance is high-handed, unlike the sin of Leviticus 5:15.⁽¹⁾ It is said to be a sin against the Lord, yet what is described is a sin against a neighbor. God mandated a 20 percent penalty plus the sacrifice of a blemish-free animal.

The text identifies the presence of a false oath in conjunction with crimes against property. The question is: Was the false oath the basis of the 20 percent penalty payment? I argue in this chapter that it was not. The false oath made mandatory the animal sacrifice, but the theft itself, confessed prior to the trial, was what invoked the 20 percent penalty. My line of reasoning rests on what I have previously identified as God's economic subsidy for early confession of crime, i.e., reduced restitution penalties.⁽²⁾

Deception is here singled out as a sin against the Lord. This includes deception regarding: 1) keeping an item entrusted for safekeeping or keeping a pledged item (collateral for a loan), 2) robbery, 3) extortion, and 4) keeping someone's lost item.⁽³⁾ Theologically speaking, every sin is a sin against the Lord, to be judged in God's final court. The victim of every crime becomes God's legal representative, for he is an earthly target of man's rebellion against God's standards.⁽⁴⁾ He is the victim, therefore, of a boundary violation. But this passage specifically identifies four transgressions as trespasses against God, whereas other trespasses listed in the Bible are not specifically identified as such. Why not? No ram offering was required for those other sins. Why not, if every sin is judicially a trespass against God? Why single out deception?

The Presence of a False Oath

The answer lies elsewhere than in the enumerated sins themselves. It is the transgressor's false verbal testimony to the victim regarding these crimes against property that serves as the differentiating factor: either lying to the neighbor directly or swearing falsely to a civil court. Writes Wenham: "By abusing the oath, a person took God's holy name in vain, and trespassed against his holiness. Therefore a reparation offering was required to make amends."⁽⁵⁾ The sin is two-fold: a violation of a neighbor's property rights (point three of the covenant: boundaries), coupled with a violation of either personal verbal assurances to the victim or the violation of a formal judicial oath (point four: oath).

Because a crime against property is involved, the lie or deception becomes a judicial oath. The victim becomes God's covenant agent, the one who initiates a lawsuit against the thief.⁽⁶⁾ The oath violation takes a specific form: the implicit (though not legally explicit)⁽⁷⁾ misuse of God's name. This is a boundary violation: the third commandment (Ex. 20:7). This oath implicitly and inescapably invokes God's negative sanctions, as all lawful oaths must.⁽⁸⁾

In a court, there must be interrogation of the suspects. God in the garden publicly interrogated Adam and Eve regarding the facts of the case. It is a crime to testify falsely in God's court or in man's. False testimony is intended to deflect God's justice. Offering it implies that God can be deceived, or at the very least, He can be deterred from bringing His negative sanctions in history. False testimony rests on a man's self-confidence in his ability to deceive God's representative agents in history. He believes that he can deflect or delay God's judgment in history by means of misleading information. This faith in false testimony rests on a theology that assumes that God is non-existent, or not omniscient, or not omnipotent, or does not bring significant negative sanctions in history. It assumes that heaven's court is non-existent, or that God is forgetful, or that time, apart from restitution, pays for all sins (universal salvation), i.e., that God does not bring negative sanctions in eternity. It assumes, at the very least, that God's negative sanctions outside the earthly court (in history and eternity) are minimal compared to the negative sanctions that can be imposed by the court, i.e., double restitution to the victim (Ex. 22:4). This law denies all of these assumptions.

Restitution and Atonement

Two separate sins were involved: one formal-covenantal (false oath), one conventional-economic (theft or fraud). Therefore, there had to be two separate acts of restitution. The first form of restitution -- sacrificing a ram -- was paid to God to compensate Him for the oath-taker's attempt to thwart God's civil court. This was necessary to satisfy God in His capacity as both High Priest and King of the heavenly court. The second -- return of the stolen item, plus a 20 percent payment -- was required by God's law to satisfy the earthly victim in his legal capacity as a victim. Both the victim and the priest served as covenantal agents of God: the first civil, the second ecclesiastical.

Penalty: A Double Tithe

The penalty for unconfessed theft is double restitution (Ex. 22:4). This is reduced to the restoration of the stolen property plus a 20 percent penalty if the thief confesses his crime before either its discovery or his conviction, as we shall see. The 20 percent penalty payment constituted a double tithe.⁽⁹⁾

Why impose a 20 percent penalty, the equivalent of a double tithe? What did the tithe have to do with restitution to the victim? James Jordan suggests that it was because guardianship is associated with Levitical office, and so is the tithe. Numbers 18 established the Levites as the guardians of sacred space and sacred things. "And thy brethren also of the tribe of Levi, the tribe of thy father, bring thou with thee, that they may be joined unto thee, and minister unto thee: but thou and thy sons with thee shall minister before the tabernacle of witness. And they shall keep thy charge, and the charge of all the tabernacle: only they shall not come nigh the vessels of the sanctuary and the altar, that neither they, nor ye also, die" (Num. 18:2-3). They were required to keep the common Israelites away from the sacred spaces of the tabernacle. This entitled them to a tithe as their lawful inheritance. Conclusion: the tithe and the Levitical protection of sacred space were linked judicially.

And, behold, I have given the children of Levi all the tenth in Israel for an inheritance, for their service which they serve, even the service of the tabernacle of the congregation. Neither must the children of Israel henceforth come nigh the tabernacle of the congregation, lest they bear sin, and die. But the Levites shall do the service of the tabernacle of the congregation, and they shall bear their iniquity: it shall be a statute for ever throughout your generations, that among the children of Israel they have no inheritance. But the tithes of the children of Israel, which they offer as an heave offering unto the LORD, I have given to the Levites to inherit: therefore I have said unto them, Among the children of Israel they shall have no inheritance (Num. 18:21-24).

Death was the civil penalty for invading the temple's sacred space, which was protected by the Levites (Num. 18:7), just as an invasion of the priests' sacred space by the Levites would bring God's death sentence against both priest and Levite (Num. 18:3). The penalty for other invasions of sacred areas was the 20 percent penalty: a double tithe. A vow to a priest was redeemed by paying a 20 percent commission (Lev. 27:19). Refusal to pay this redemption price resulted in the permanent loss of the property, even rural land (Lev. 27:20-21).⁽¹⁰⁾ Unintentional boundary violations of sacred things also required a double tithe penalty: "And if a man eat of the holy thing unwittingly, then he shall put the fifth part thereof unto it, and shall give it unto the priest with the holy thing" (Lev. 22:14). "Speak unto the children of Israel, When a man or woman shall commit any sin that men commit, to do a trespass against the LORD, and that person be guilty; Then they shall confess their sin which they have done: and he shall recompense his trespass with the principal thereof, and add unto it the fifth part thereof, and give it unto him against whom he hath trespassed" (Num. 5:6-7).

In the same sense that every man is a priest through Adam, every man is a Levite through Adam. He is a designated guardian of God's property: a Levitical function. The property owner is inescapably God's steward because God owns everything: "For every beast of the forest is mine, and the cattle upon a thousand hills" (Ps. 50:10). All subordinate ownership is necessarily representative. It is therefore stewardship. This judicially bounded sphere of economic responsibility is not to be invaded unlawfully: the eighth commandment (Ex. 20:15). Adam is the archetype. He was established as a guardian of God's property -- a Levitical function -- even before he acted as a priest. He was told to serve as a guardian on the day of his creation (Gen. 2:15). His profane, sacrilegious act of priestly defiance -- eating a prohibited communion meal in the presence of an invading serpent -- took place later (Gen. 3:6).

Thwarting Civil Justice

The lie or false oath had been intended to deflect either the economic victim or the court from discovering the truth. In this sense, it was an affront to God's kingly justice. It was an attack on the integrity of both His heavenly court and His representative earthly civil court. The false testimony may or may not have put someone else under suspicion; we are not told. What we are told is that there were two separate forms of restitution: 1) the return to the victim of the full value of whatever had been stolen, plus a penalty payment of 20 percent (a double tithe); 2) a ram to be sacrificed by a priest.

The connection between the false oath and the civil court is easy to understand. The court enforces justice in the name of God and on behalf of the victim. It sets things straight judicially and economically by declaring guilt or innocence. That is, the civil court practices judicial orthodoxy: straight speaking. It defends its own integrity. Why, then, is the court not authorized by God to collect for itself the extra 20 percent, or allowed to impose some additional penalty? Why does the entire restitution payment appear to go to the victim,⁽¹¹⁾ since the false oath was made to impede the proper functioning of the court?

The Victim Becomes a Judicial Agent

We can find the answer to this question by first observing that the initial lie was made to the neighbor, not to the court: "If a soul sin, and commit a trespass against the LORD, and lie unto his neighbour in that which was delivered him to keep, or in fellowship, or in a thing taken away by violence, or hath deceived his neighbour; . . ." This preliminary section of the passage does not mention any formal court proceeding, yet the criminal still owed a ram to God. This indicates that the victim, to whom the criminal lied, was in fact an agent of the civil court, even though the court had not been called into session. It was the victim who possessed lawful authority to call the court into session. He was gathering preliminary facts regarding the violation. The victim was acting therefore not only on his own behalf but also as an agent of society's primary institution of civil justice, the court. The lie to the neighbor was therefore judicially an oath to a covenantal institution. It had a unique binding character that conventional falsehoods do not possess.

The victim, in seeking justice, does not represent only himself. Biblical jurisprudence recognizes the earthly victim as a representative of God. A sin against him is always in his legal capacity as God's representative; the ultimate target of the sin is God. The sinner in history attacks various aspects of the creation in his attempt to defy God, since God cannot be attacked directly. The sinner violates God-established earthly boundaries in his judicial rebellion against God. The archetype act of rebellion was Adam's. Adam could not attack God directly, for God was absent from the garden; instead, Adam violated the boundary that God had placed around the forbidden tree.

This leads us to a significant conclusion: the very existence of an earthly victim calls God's heavenly court of justice into session. If the existence of a boundary violation becomes known to the victim, this discovery automatically invokes an earthly civil court of justice.⁽¹²⁾ This invocation may not be a formal public act, but God, as the sovereign king of the commonwealth, calls it into session historically. When the victim learns of the violation, he is supposed to begin a search for incriminating evidence. Crimes are not to go unpunished in God's social order, for they are inherently attacks on Him. Crimes are to be solved in history if the costs of conviction are not prohibitive, i.e., if too many resources are not drained from the victim or the court in solving a particular crime.

The world is under a curse: a cursed form of scarcity (Gen. 3:17-19). There are limits to anti-crime budgets. In a world of scarcity, including scarcity of accurate knowledge, there cannot be perfect justice. Justice in history is purchased at a price.⁽¹³⁾ The price of perfect justice institutionally is too high; any attempt by a court to achieve it will bankrupt the institution that finances the court. This quest for exhaustive knowledge and perfect justice paralyzes the institutions that pursue them. Therefore, if the victim thinks it will take too many of his own resources to identify and convict the criminal, or if he thinks his accusation could be turned against him later for lack of evidence gathered by the court, he has the option of refusing to pursue the matter. He can let God settle it in eternity. He can rest confident in God's perfect justice. Rushdoony said it well: "History culminates in Christ's triumph, and eternity settles all scores."⁽¹⁴⁾

God nevertheless wants criminals brought to justice in history. The Bible places the responsibility of pursuing justice on the individual who is most likely to want to see the criminal brought to justice: the victim.⁽¹⁵⁾ Because the crime was ultimately against God and His mandated social order, the victim becomes God's primary representative agent in pursuing justice. The victim is also uniquely motivated to begin this search for incriminating evidence, since he is the loser, and he will receive a restitution payment upon confession by, or conviction of, the criminal. As I have argued elsewhere, if he refuses to pursue the criminal or bring charges against him, the civil court is not to intrude on the case, unless he is a minor or legally incompetent.⁽¹⁶⁾ Unless the criminal has threatened the victim with reprisals, thereby making the court his victim, the court is to abide by the decision of the victim. Thus, when the victim begins his investigation of the crime, he is serving as God's primary covenantal agent. His task is to gather information to be used in a lawsuit against the criminal. He is acting as an agent of two courts: God's heavenly court and His earthly civil court. In a sense this does not do full justice to the victim's unique legal position. The civil court is to some degree the economic agent of the victim. The victim, in his legal capacity as a victim, is a representative of God. The problem is, the court does not know who the victim is, plaintiff or defendant, until after the presentation of the evidence and cross examination.

Allocating the Costs of Civil Justice

Court costs and legal fees are very high in modern American society because of its demonic quest for perfect earthly justice.⁽¹⁷⁾ Thus, one legitimate way for society to reduce the number of cases placed before its civil courts is to require the prosecutor -- either the plaintiff or the prosecuting attorney's office -- to pay for all court and legal expenses if the defendant is declared innocent. The risk of a "not guilty" verdict should be borne by the prosecutor: the cost of an unsuccessful prosecution. Today, this risk is entirely born by the defendants in societies, such as the United States, where those declared innocent are not reimbursed for their defense costs. The risk of bearing these costs should be shifted from the defendant to the one bringing the accusation.

It is true that poor people could not afford to prosecute if they had to bear all of the risk of paying for all court costs and legal fees. But there is another side to this problem. It is equally true that poor people cannot afford to defend themselves. This is why, in the United States, the civil government must by law provide poor people with a defense lawyer when the State brings a poor person to trial.⁽¹⁸⁾ The only thing that protects a poor person from a private plaintiff is his poverty: there is nothing to collect. But if the State still enforced slavery for economic offenses by those who have no assets, the poor man would again be a target.⁽¹⁹⁾

What of the middle-class defendant? He can be destroyed financially by a wealthy plaintiff, such as a large corporation, or by an agency of civil government. This is unjust: bankrupting the innocent person by means of the trial process. The rule of law should provide that neither the plaintiff nor the defendant be given an economic advantage in a civil court. I shall explain the implications of this later in this chapter.

Civil Law and Criminal Law

When I say civil court, I mean criminal court. Modern humanist law distinguishes between criminal law and civil law. Civil law cases are formal debates between two private parties that are decided by a court. Somebody owes something to another private individual; the court decides who owes what. Criminal law is between the State and an accused person. Criminal law refers to cases tried in a court because of the criminal's transgression of a statute. In modern terminology, the criminal owes a debt to society.

The Bible does not distinguish between civil law and criminal law. All cases are criminal cases, since all are argued in a civil court. (The language here is confusing because of the humanists: the criminal law vs. civil law distinction.) So-called civil cases, when brought before a civil magistrate -- the minister of the sword -- are brought because one party (the defendant) has defrauded another (the plaintiff) or because one party (the plaintiff) is trying to defraud the other (the defendant). A self-proclaimed victim brings his accusations against someone by means of the State. That another person has refused to pay him what is owed necessarily makes the dispute a criminal case, biblically speaking. Someone is defrauding the other. Someone therefore must be threatened by the sword: civil government. The refusal to pay what is owed is a criminal act, biblically speaking. The serpent's seduction of Adam and Eve was not merely a civil matter between him and them. It was a criminal matter. There are no cases in the Bible of private disputes that go before the King or an Israelite court that do not become criminal matters, i.e., matters decided by the monopoly of violence, the State.

Once a public accusation is made by one party against another, the issue of criminality -- false witness -- cannot be evaded. Someone may be lying. That person, biblically speaking, is a criminal. All civil court cases are inescapably criminal cases, biblically speaking. All invoke restitution on a false accuser (Deut. 19:14-19). In such cases, the person who brought the accusation and then loses the case, if he can be shown to have lied, must pay all court costs and make restitution to the victim equal to the value of whatever he sought to extract from him (Deut. 19:19).

If neither party is proven a false witness, then the loser should pay the court costs of the winner, as in the British common law system. This upholds the principle of victim's rights, the fundamental principle of biblical justice. The innocent party should experience no penalty, including his defense costs. Once a society acknowledges this principle, it must seek ways to structure its court procedures to see to it that victims are protected. In all modern societies, this would require a major restructuring.

Who Is the Accuser?

The plaintiff alone determines whether or not to initiate the prosecution of a lawsuit; the court is to support his decision. The question is: Must the court press charges solely on the testimony of the victim? If the victim is poor, for example, and cannot afford to hire a lawyer, or if he fears the economic consequences of having brought charges that a jury refuses to support, should the court intervene and prosecute on behalf of the victim? In other words, if the court believes that there is sufficient evidence of criminal wrongdoing to warrant a trial, can it lawfully begin proceedings if the victim fears to do so on his own behalf?

The legal issue here is victim's rights. The officers of the State are not sure who is telling the truth. The rights of the victim must be upheld, but who is the victim? Only a trial can determine this. The question is: Should there be a trial? If, as in the British legal system, the one who loses the case pays for all court costs, the victim may be afraid to seek justice in the courts. The victim could be either the accuser or the accused. How can the court see to it that God's justice is maintained if either party is afraid to go to trial even though he believes himself to be the innocent victim?

If the plaintiff agrees to press charges, the court has no decision to make. The officers open the court to the rival parties. The jury decides. The loser pays the winner's legal costs. If the plaintiff is unwilling to take this risk, but the court decides that prosecution is warranted in the name of justice, should the plaintiff be allowed to transfer the risk of loss to the court? That is, should the court be allowed to act as the agent of the plaintiff, pressing charges on the basis of the evidence, but relieving the plaintiff of all risk of loss if the jury decides otherwise? If so, and the court does press charges, who should pay whom if the accused is declared innocent by the jury? Second, who should be paid if the jury finds the accused guilty?

Who Pays?

Let us consider the first case: the plaintiff decides to accept the risk. He decides to press charges. The civil court should not have the option of refusing to prosecute. The trial takes place. The loser pays his own lawyer (if any) and the defendant's lawyer. The State provides the service for free. This is what the State is supposed to do: provide justice for all.

But there is a problem: the potential threat of a defendant who tells the plaintiff that he intends to hire a very expensive lawyer. "If I win," the defendant says, "you will be sold into slavery to pay my legal expenses. And with this lawyer, I will probably win. You can't afford to hire anyone equally good." This weighs the scales of justice against the plaintiff. He may be too fearful of bringing legitimate charges. Of course, it could be the reverse: a wealthy plaintiff threatens the defendant with the post-trial cost of paying a high-priced lawyer. The solution is to require the guilty party to pay the victorious party only as much money as he himself paid his own lawyer. This way, there is pressure on the two parties to come to an agreement in advance regarding total legal expenses, but neither party can use the threat of post-trial legal expenses to scare the other into a settlement.

In a case between a rich man and a poor man, the poor man would probably argue his own case. That would reduce his legal expenses to zero. This is what takes place in local small claims courts in the United States. He would owe nothing to the defendant if he loses but is not convicted of false witness. But the defendant does not have to bear major legal expenses if the two go before the judge as individuals. If the initiator decides to forego the use of a lawyer, the case can be settled rapidly. This reduces the society's cost of justice.

The second case is more difficult case. The plaintiff believes he is a victim, but he refuses to bear the responsibility of losing. Perhaps he is poor. Should the State be allowed to grant him immunity from post-trial expenses? Yes. Justice should not be available only to individuals who can afford to lose. The State can afford to lose. Nevertheless, the State may choose not to prosecute if it thinks the plaintiff's case is weak. If the legal system provides that the accused automatically has all of his defense expenses paid by the court, then the civil court's officers may lawfully refuse to press charges if they believe that the plaintiff is likely to lose and the plaintiff is unwilling to bear the risk of loss. Like the U.S. Supreme Court, which is not compelled by law to review every case sent to it by lower courts, so is the local court. It can refuse to prosecute.

If the court grants immunity to the plaintiff for post-trial court expenses, it must do the same for the accused. The court must not tip the burden of loss in favor of either party. If the court decides to prosecute, and the defendant loses, the defendant is required to pay the victim, but he is not required to pay the court. The State provides its services to the disputants for free.

In a biblical civil order, the State acts as the agent of a victim. It cannot be sure in advance who the victim is. I have argued in Tools of Dominion and Victim's Rights that the State may not prosecute anyone in its own name unless a State agency has been defrauded or unless the injured party is incompetent: a child, a moron, or some other person with no one to speak on his behalf. The most important of these silent victims is a murder victim. The State is God's agent of vengeance by way of a victim, although the State can sometimes be the victim.⁽²⁰⁾

I argue here that the State is also authorized to act as the plaintiff's agent when the plaintiff seeks post-trial economic immunity. In seeking such immunity, the plaintiff transfers the decision to prosecute to the court. In modern American society, a grand jury serves as the decision-maker. So does a district attorney. There is no question that fewer cases would be brought before grand juries by district attorneys if the district attorney's office had to bear the costs of both the defense and the prosecution.

If the plaintiff, having received post-trial immunity, is subsequently convicted of being a false witness, does he owe the State anything? Not if justice is to be provided by the State for free, which the Bible says it should. He owes his victim whatever the victim would have owed him, had the victim been convicted (Deut. 19:14-19). He does not owe the court anything beyond the sacrifice required in Leviticus 6:1-7.

The State Should Pay Basic Legal Fees

In order to protect the innocent accused person, the State should pay all court costs when it prosecutes. The modern U.S. court does this in the case of poor defendants only. This discriminates against the non-poor defendant. Even the poor are cheated: they must pick from court-appointed attorneys who are not paid very much. The defendant is not provided with funds equal to the funds made available to the prosecution. The State should offer a defendant the same amount of money that the State's prosecuting attorney pays to prosecute the case. The State's prosecuting attorney would then have to estimate the total costs of prosecution in advance and pay himself and his staff no more than his half. In effect, he would be required to contract with the court for services rendered.

In such a system of justice, there would be no independent salaries or free rental space for the prosecutor and his staff. This way, the court can estimate in advance what it will cost to prosecute a case. Far more important, so can the defendant. A case's prosecution costs are not hidden in a collective annual budget for the prosecutor's office. The defendant would receive the same amount of money to hire his defense. This would mean that a defendant would have to accept this amount as his limit, too, unless he were willing to forego reimbursement by the State for expenses above this amount if he should win. In a sense, this is a recommendation for State-funded defense payments: each side receives from the local court a minimum amount of money to conduct its case before the court. The defendant can pay more if he wants to, but the State would not reimburse him.

This system would place limits on the State's risk of losing a case. It would also place limits on the State's economic ability to prosecute a case. A prosecutor would hesitate before launching a case. There would be no financially open-ended cases. Prosecutors could not afford to pursue perfect justice. They would have to count the costs.

Spending Caps

Without a pre-paid system with mutual spending caps but also with State liability to pay all of the innocent defendant's legal expenses (victim's rights), a wealthy defendant could hire a very expensive law firm, and the State would have pay all of his fees if the accused is declared innocent. The State might not be willing to prosecute: too much risk -- the more expensive the defense team, the more the State's risk. But biblical civil justice demands that both plaintiff and accused should "have his day in court" irrespective of their personal wealth. Men should not be allowed to buy their way out of court, since they will not be allowed to buy their way out of God's court on judgment day.⁽²¹⁾ This is why a pre-paid legal expenses system is needed with a spending cap on both the prosecution's total expenses and the defense's reimbursable legal expenses. The prosecution decides how much it is willing to spend to achieve justice, but not irrespective of the defense's expenses. It provides the same amount of money to the defendant for paying his lawyer. The case would be more likely to be decided in terms of its merits rather than the comparative economic resources available to attorneys.

This system would retard the demonic, bankrupting quest for perfect justice. A prosecuting attorney whose cases repeatedly result in major losses for the court would find himself in trouble at the next election. There would be negative political sanctions for high expenses because of negative economic sanctions.

This payments system does not subsidize the prosecution. In this sense, it acts as an economic restraint on the State. The State must prove its cases, not gain men's consent through imposing the threat of bankruptcy on innocent people who may be able to win in court. The growth of the messianic State in the twentieth century has been heavily subsidized by the present payments system. The growth of administrative law, which legal historian Harold Berman regards as the greatest single threat to human freedom,⁽²²⁾ has also been funded by the present payments system.

Intercession as a Model

Is there biblical evidence for State-funding of lawyers on both sides? Direct evidence, no; indirect evidence, yes: the biblical doctrine of intercession. Intercession is always judicial in Scripture, though not always exclusively judicial. It is formal pleading before the throne of God. God prophesied of the coming Messiah: "Therefore will I divide him a portion with the great, and he shall divide the spoil with the strong; because he hath poured out his soul unto death: and he was numbered with the transgressors; and he bare the sin of many, and made intercession for the transgressors" (Isa. 53:12). Because God knew that Judah was guilty, Jeremiah was warned: "Therefore pray not thou for this people, neither lift up cry nor prayer for them, neither make intercession to me: for I will not hear thee" (Jer. 7:16).

In the New Testament, God the Father has established a model for justice: providing His people with a free defense attorney, the Holy Spirit. "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" (Rom. 8:26-27). The Holy Spirit acts in the name of Jesus, who serves as the supreme defense attorney. "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. 8:34). "Wherefore he is able also to save them to the uttermost that come unto God by him, seeing he ever liveth to make intercession for them" (Heb. 7:25). Jesus Christ has paid the legal defense costs for His people.

God does not provide an attorney for the guilty. But because God is omniscient, there is no function for a defense lawyer on judgment day,⁽²³⁾ just as there was no need for defense counsel for Judah in Jeremiah's day. However, because men are not God, they are not omniscient. Men do not know in advance who is innocent or guilty. Thus, the State, as the earthly representative of God's heavenly court, should provide every defendant it prosecutes with money to hire a defense lawyer -- to be repaid if he loses -- whenever it provides State-financed prosecuting attorneys.

Priestly Agents of God's Heavenly Court

When the plaintiff brings a lawsuit in his own name, he inevitably also brings it in God's name, for God is the primary victim of crime. If he was a victim, he is acting as God's agent. The civil court is required to examine the evidence and announce judgment, but this judgment is made in the name of the two victims: God and the earthly victim, either the plaintiff or the defendant. The civil court is an agent of the victim in a way that the ecclesiastical court is not. The civil court acts to defend the victim's rights, whereas the priest acts to defend the civil court's authority in the case of a false oath.

The required animal sacrifice served as an atonement for a crime against God's civil court. This sacrifice wiped away the sin ritually. It was a public acknowledgment of a transgression against God's civil court. What is significant here is that an ecclesiastical act was required to atone for a civil transgression. The verbal cover-up (false witness) required a ritual payment.

This raises a key question: Why was there a ritual connection between a civil court and the priesthood? Because of the two-fold character of God's judgment. The civil court always represents God's heavenly court in a subordinate fashion, analogous to the victim, who in his legal capacity as a victim also represents God subordinately. The civil court acts on behalf of the victim, but only in its judicial capacity as the minister of kingly justice (Rom. 13:4), as the institution that lawfully bears the monopolistic sword of vengeance. But God requires more than civil sanctions to placate His wrath against the criminal. He sits on His throne as both High Priest and King; on earth, these offices are divided except in two unique cases: Melchizedek (Gen. 14:18) and Jesus Christ. God must be placated in both of His offices. This is why no single earthly court can lawfully offer two-fold atonement to a criminal. God therefore requires a priestly sacrifice.

New Testament Sacrifice

In the New Testament, this priestly sacrifice was made by Jesus Christ at Calvary. The various animal sacrifices in the Old Testament representationally prefigured this ultimate sacrifice (Heb. 9). A question legitimately can be raised: Is any post-Calvary public mark of contrition lawfully imposed by the church on the perjurer? If so, on what legal basis?

If the perjurer is a church member, he has partaken of the Lord's Supper throughout the period following his false testimony to the court. This placed him in jeopardy of God's negative sanctions (I Cor. 11:30). He ignored this threat, thereby implicitly adopting the same false theology of God's minimal sanctions, previously described. The church's officers deserve to know of the transgression, and can lawfully assign a penalty. This penalty should not exceed the value of a ram in the Mosaic economy.

If the perjurer is not a church member, he is still dependent on continuing judgments by the church to preserve God's common grace in history. The State can lawfully function in non-Christian environments, but only because of the common grace of God mediated through His church and its sacraments. Offering these representative sacrifices is the permanent responsibility of God's church. This is why Israel had to offer 70 bullocks annually (Num. 29:12-32) as sacrifices for the symbolic 70 pagan nations of the world (Jud. 1:7), plus a single bullock for herself on the eighth day (Num. 29:36).⁽²⁴⁾

The Church: Guardian of the Civil Oath

What this means is that the church is the guardian of the covenantal civil oath. This is an inescapable conclusion from the fact that only the church has the authority to accept the perjurer's sacrifice in atonement for the false oath. The State cannot offer this release from guilt. The oath involves the formal calling down of God's negative covenant sanctions on the oath-taker. He who uses God's name in vain in a formal judicial conflict must then seek judicial cleansing from the church. The reason why the oath is guarded by the church is that the church alone can lawfully invoke the eternal negative sanctions of God against an individual.⁽²⁵⁾ Thus, by invoking the oath in a civil court, the criminal necessarily brings himself under the judicial authority of the church.

The modern practice of allowing atheists to "affirm" to tell the truth in court, but not to swear on the Bible or in God's name, is a direct affront against God and against the church as the guardian of the oath. It is also inevitably an act of divinizing the State by default. The State becomes the sole enforcer of the public affirmation. In such a worldview, there is no appeal in history beyond the State and its sanctions. The atheist's affirmation is therefore a judicial act demanding the removal of God from the courtroom. Thus, it requires the creation of a new oath system, with the State as the sole guardian of the oath. The State acts not in God's name but in its own. Rushdoony's comments are on target: "If a witness is asked to swear to tell the whole truth and nothing but the truth without any reference to God, truth then can be and is commonly redefined in terms of himself. The oath in God's name is the `legal recognition of God'⁽²⁶⁾ as the source of all things and the only true ground of all being. It establishes the state under God and under His law. The removal of God from oaths, and the light and dishonest use of oaths, is a declaration of independence from Him, and it is warfare against God in the name of the new gods, apostate man and his totalitarian state."⁽²⁷⁾

The biblical State can lawfully impose negative sanctions against a perjurer, but only on behalf of the victim. The State cannot lawfully pronounce the permanent negative sanctions of the oath against anyone. The State can lawfully require an oath, but it is not the institutional enforcer of this oath. The presence of the oath to God is a public acknowledgment of the non-autonomy of the State. God is above the State, and the church stands next to it as the guardian of the oath.⁽²⁸⁾

This means that theocracy is required by God's civil law. Without the God-given authority to require an oath, the State would lose its covenantal status as a lawful monopolistic institution with the authority to enforce physical sanctions against evil-doers. It would lose its status as a covenantal institution. Yet by imposing an oath, it inevitably places itself under the protection of the church, for the church is the defender of the oath. As the great seventeenth-century jurist Sir Edward Coke put it, "protection draws allegiance, and allegiance draws protection."⁽²⁹⁾

A lawful covenantal oath is always self-maledictory: it calls down God's negative sanctions on the oath-taker if he lies. This includes eternal negative sanctions. The State acts only on behalf of victims: God's primary representatives in criminal cases. It cannot act on its own behalf in a priestly capacity in God's heavenly court. The State cannot lawfully act as an autonomous priestly intermediary between God and man. To argue that the State imposes the oath as a lawful agency under God but apart from the church is to anoint the State as a priestly intermediary between God and man, an institution possessing the power to declare God's negative eternal sanctions. Such an assertion by a State identifies the State as messianic.

The church alone is empowered by God to act as the guardian of the civil oath. The presence of a required payment to the priest is proof of this conclusion. Those political pluralists who today call for an absolute separation between church and State are implicitly calling for the elevation of the State into the office of lawful mediator between man and God, or else they are denying God and His sanctions altogether, thereby deifying the State by default. In either case, they are abandoning biblical covenant theology.⁽³⁰⁾ Political pluralism inescapably defends the establishment of a messianic State, but in the name of disestablishment: the separation of church and State.

Confession and Restitution⁽³¹⁾

Once a person commits a theft, he automatically owes the victim at least a 20 percent payment in addition to the return of the stolen item or its present monetary equivalent. The case does not have to come to trial for this penalty payment to be owed by the thief. I derive this conclusion from the Exodus 22's case laws regarding theft, but also from the example of the archetypal theft: Adam and Eve's stealing of God's forbidden fruit. The moment they touched it, they were guilty. They owed God at least a ritual apology. In the Mosaic Covenant, anyone who touched a forbidden (unclean) thing was himself unclean until evening (Lev. 11:24-25). I think this is because God had originally returned in judgment to the garden "in the cool of the day" (Gen. 3:8), meaning at evening. It did not reduce God's net asset value for them to have merely touched the fruit, but it was a violation of His law, His ethical boundary.

They went beyond mere touching; they stole the fruit and ate it. This was theft. It was corrupt caretaking. It was also the equivalent of eating a forbidden sacrifice, for it was a ritual meal eaten in the presence of the serpent. The penalty for this in ancient Israel was separation from God's people: "But the soul that eateth of the flesh of the sacrifice of peace offerings, that pertain unto the LORD, having his uncleanness upon him, even that soul shall be cut off from his people. Moreover the soul that shall touch any unclean thing, as the uncleanness of man, or any unclean beast, or any abominable unclean thing, and eat of the flesh of the sacrifice of peace offerings, which pertain unto the LORD, even that soul shall be cut off from his people" (Lev. 7:20-21). This penalty pointed back to the garden, where God separated Adam and Eve from Himself by casting them out of the garden.

God, however, is merciful to sinners. Why else would He have created the sacrificial system? Thus, had Adam and Eve come to God as He entered the garden, admitting their sin and pleading for mercy, He would have spared mankind the ultimate penalty of eternal separation from Him. In fact, had they prayed a prayer of confession rather than spending their time sewing fig leaves for themselves, they would have escaped the death penalty -- full restitution payment to God. This very act would have constituted a pre-trial confession of guilt. It would have been an act of symbolic communion with God -- a judicial, sanctions-governed act of repentance. But instead, they tried to cover the visible effects of their guilt through their own efforts: sewing fig leaves. God therefore announced His sentence of death against them: dust to dust. Those who wait until the end of the trial must make full (multiple) restitution.

My conclusion is that a pre-trial confession of guilt by the criminal is punished less rigorously than a crime in which the criminal is convicted on the basis of the judge's inquiry. A person is always encouraged by God to confess his sins. If these sins are public sins, then his confession must also be public, if not to a court, then at least to the victim. For example, if a worker steals cash from his employer, but later replaces it before the theft is discovered, he still must confess his crime to the owner. The fact that no human being detected the crime does not affect the question of guilt and sanctions in God's eyes. The thief did impose the risk of permanent loss on the victim, even though the victim suffered no known loss; the victim therefore deserves compensation. This upholds the biblical principle of victim's rights. The victim, like God, should strive to be merciful, but biblical law teaches that he is entitled to be informed that mercy is now in order.

A Subsidy for Early Confession

The Bible subsidizes early public confession. If a man confesses, he can escape the multiple restitution requirement: he is required only to repay the stolen principal, plus 20 percent, as this passage teaches.

There appears to be an inconsistency in the law at this point. The penalty for theft is here stated to be 20 percent, yet in other verses, restitution for theft in general is two-fold, and sometimes four-fold or five-fold (Ex. 22:1-4). Why the apparent discrepancy? We know that Leviticus 6 is dealing with cases in which the guilty person has sworn falsely to the victim or to the authorities. Later, however, he voluntarily confesses the crime and his false oath. I conclude that the double restitution penalty is imposed only in cases where a formal trial has begun. The provision in Leviticus 6 of a reduced penalty is an economic incentive for a guilty person to confess his crime before the trial has begun, or at least before the court hands down its decision.⁽³²⁾

The thief has testified falsely to the authorities, either before the trial or during it. This is why he owes a trespass offering to the priest (Lev. 5:1-13; 6:6). I argue here that he can lawfully escape the obligation to pay double restitution if he confesses after his initial denial but before the trial begins. He cannot lawfully escape paying double restitution and making the trespass offering if he swears falsely during the trial. He has to confess before the oath is imposed and the trial begins. At the very least, he must confess before it ends.⁽³³⁾

As always, we should search for a theocentric principle lying behind the law. There is one in this case: the correlation between this reduced criminal penalty for voluntary, public confession of sin, when accompanied by economic restitution, and God's offer of a reduced (eliminated) eternal penalty for people who make public Christian confession of sin prior to their physical death, if this confession is also accompanied by economic or other kinds of restitution.⁽³⁴⁾ If we wait for God's formal trial at the throne of judgment, we are assured of being forced to pay a far higher restitution penalty.

Why do I believe that Leviticus 6 refers to a pre-trial voluntary confession? Because of the context of Leviticus 6. Leviticus 5 deals with sins against God that must be voluntarily confessed: "And it shall be, when he shall be guilty in one of these things, that he shall confess that he hath sinned in that thing" (Lev. 5:5). The sinner in Israel then brought a trespass offering to the priest (Lev. 5:8). This made atonement for the trespass: "And he shall offer the second for a burnt offering, according to the manner: and the priest shall make an atonement for him for his sin which he hath sinned, and it shall be forgiven him" (Lev. 5:10). Why would he make such a public confession? Because of his fear of the ultimate penalty that God will impose on those who offer false testimony in His courts.

We then note that Leviticus 6 also deals with trespasses against God. It is specifically stated in Leviticus 6:2 that the 20 percent penalty payment applies to "a trespass against the LORD" in which the sinning individual has lied to his neighbor about anything that was delivered to him by the neighbor for safekeeping. The context indicates that the sinner has voluntarily confessed his crime against God and his neighbor, just as he voluntarily confessed his trespass against God in Leviticus 5.

 

Restitution Plus a Trespass Offering

Here is the problem the commentator faces. The text in Exodus 22 states that the court is to require double restitution from the neighbor who has "put his hands to" his neighbor's goods. He is therefore to be treated as a common thief. But if double restitution is the required penalty, then what is the 20 percent penalty of Leviticus 6:5 all about?

A Rabbinical Court?

It has been argued by some Jewish commentators that the 20 percent penalty in Leviticus 6:5 is to be imposed only in cases where there has been a public oath before a rabbinical court. They argue that the penalty payment does not apply to cases of voluntarily confessed theft as such, meaning secret or even undetected thefts, but only to cases of forcible robbery in which the thief is identified, arrested, and brought before an ecclesiastical (i.e. synagogue) court, where he gives a false oath of denial, and later admits this lie. Writes Jacob Milgrom: "Since the point of this law is to list only those cases that culminate in the possessor's false oath, it would therefore be pointless to include the term `theft' which assumes that the possessor-thief is unknown."<sup>(35)</sup> He goes so far as to argue that the Leviticus passage deals only with religious law, not civil law. "All that matters to the priestly legislator is to enumerate those situations whereby the defrauding of man leads, by a false oath, to the `defrauding' of God. The general category of theft in which the thief remains unidentifiable is therefore irrelevant to his purpose."⁽³⁶⁾ Eight centuries earlier, Maimonides wrote that the thief who confesses of his own accord owes only the value of the asset he stole, not double restitution. He did not mention the 20 percent penalty.⁽³⁷⁾

If Milgrom's view were correct, this would mean that there would be no court-imposed restitution penalty payment from criminals to victims in (oathless) cases of pre-trial, self-confessed theft. Why wouldn't there be such compensation? Because the one-fifth penalty is assumed by Milgrom to be applicable only in cases where there has been a false oath to a rabbinical court. This interpretation therefore eliminates the 20 percent penalty payment for pre-trial, self-confessed crimes.

Victim's Rights

While this judicial implication follows the premise, it is not in accord with the biblical principle of victim's rights. The victim has been deprived of his property, and he has suffered a sense of loss, assuming that he had actually discovered that the stolen item was missing, yet the Bible supposedly makes no provision to compensate him for these obvious burdens. On the face of it, this conclusion seems highly unlikely, yet it follows inevitably from the initial claim that the 20 percent penalty only applies to cases where there has been a false oath to an ecclesiastical court.

Why do I believe that this rabbinical court interpretation is unlikely? Because the Bible is emphatic that victims are to be protected, and that criminals are to suffer losses in proportion to their crimes. The thief who confesses before a trial is not on a par judicially with a neighbor who has, through negligence, lost or inadvertently ruined an item placed in his safekeeping. The negligent neighbor pays only for what he lost; the self-confessed thief has to pay more. The principle of lex talionis applies here as elsewhere: the penalty must fit the crime.⁽³⁸⁾ To argue that the penalty is the same for theft and negligence -- merely the return of the stolen item or its equivalent value -- is to deny lex talionis.

If thieves were granted the legal option of returning stolen goods whenever it appeared to them that they might be discovered, but before they are put under formal oath, then it would be far less risky to steal. If there is a 20 percent penalty only after a false oath is given but before a trial, then a theft that is confessed before the oath is administered would become virtually risk-free for the thief. He could escape any penalty simply by confessing his crime and by returning the stolen property. The option of self-confession would remain as an escape device whenever the authorities began to close in. If God's law did not impose penalties on theft, it would implicitly be subsidizing criminal behavior. God does not subsidize rebellion.

The express language of the passage militates against Milgrom's interpretation of Leviticus 6. After listing all sorts of theft and deception, the text says, "he shall even restore it in the principal, and shall add the fifth part more thereto" (v. 5). To whom must this penalty payment be paid? To the victim: "Or all that about which he hath sworn falsely; he shall even restore it in the principal, and shall add the fifth part more thereto, and give it unto him to whom it appertaineth, in the day of his trespass offering" (v. 5; emphasis added).

At this point, I depart slightly from the original text in Tools of Dominion.⁽³⁹⁾ When I wrote that book, I had not yet perceived that the thief's violation of another person's property is judicially analogous to a trespass of a holy place or thing, thereby mandating the economic equivalent of a double tithe. The tithe was paid to a Levite. Thus, the trespass made the stolen property judicially holy, and thereby made its owner, a guardian of God's property, the economic equivalent of a Levite.

I had originally linked the 20 percent payment penalty to the false oath. The problem with this interpretation is that it disregards the biblical reward for confession prior to a trial. If a false oath invoked the penalty, then what would be the penalty for the crime if the thief voluntarily confesses before lying to the owner? Nothing besides the return of the object stolen? This would subsidize theft. God does not subsidize theft. But if double restitution were automatically imposed, then where would be the economic subsidy for voluntary pre-trial confession? Thus, the 20 percent penalty must be the minimal restitution payment for theft, not a payment for the false oath. The payment goes to the victim as a Levitical guardian agent.

Each of the victims of these crimes is to be compensated by a 20 percent penalty payment. The crimes are separate acts; thus, translators used the English word "or" in listing them, indicating that any one of these criminal infractions automatically invokes the 20 percent penalty. But what of the false oath? Consider the context of this passage: the five major sacrifices. The false oath is covenantal and therefore self-maledictory; it invokes its own independent penalty payment: the trespass offering, a ram without blemish (Lev. 6:6). So, the criminal must pay the victim 20 percent even if he confesses before he is convicted, with or without the presence of a false oath. This law's economic penalty applies only to a specific time frame: pre-trial confession. The false oath to the court adds an additional requirement: a sacrifice administered by a priest.

Calculating the Required Restitution

Leviticus 6 is not in opposition to Exodus 22:9. Exodus 22:9 requires double restitution either from the false accuser who perjured himself (Deut. 19:16-19) or from the criminal neighbor (thief).

Payment to the Victim

Assume that the criminal neighbor swears falsely before the judges in order to avoid having to pay double restitution to his victim; if successful in his deception, he then collects double restitution from the victim.

If a man shall deliver unto his neighbour money or stuff to keep, and it be stolen out of the man's house; if the thief be found, let him pay double. If the thief be not found, then the master of the house shall be brought unto the judges, to see whether he have put his hand unto his neighbour's goods. For all manner of trespass, whether it be for ox, for ass, for sheep, for raiment, or for any manner of lost thing, which another challengeth to be his, the cause of both parties shall come before the judges; and whom the judges shall condemn, he shall pay double unto his neighbour (Ex. 22:7-9).

What if he then repents of his false oath before it is discovered? He still owes the original double restitution, plus the return of the falsely collected double penalty, plus a 20 percent penalty payment on everything (Lev. 6:1-6). Thus, if the stolen object is worth one ounce of gold, the restitution payment owed to the victim by a now-confessed perjured thief would be 4.8 ounces of gold: 2 ounces (the original double restitution payment),⁽⁴⁰⁾ plus 2 ounces (the falsely extracted penalty) plus .2 times 4 ounces, meaning .8 ounces = 4.8 ounces.

What about the perjured thief who refuses to admit his guilt and who is later convicted of this perjury? Because he had been paid double restitution by his victim, he now owes him six-fold restitution: double whatever he had stolen (2 X 1) plus double whatever he had unlawfully collected (2 X 2). This threat of six-fold restitution serves as an economic incentive for the perjured thief to confess to the court that he had offered false testimony earlier. We see once again that biblical law rewards timely confession.

Exodus 22:9 establishes double restitution for stolen sheep and oxen, not four-fold or five-fold. This is because the stolen animals had not been slaughtered or sold. What if the court does not have proof that the accuser testified falsely against his neighbor, yet also does not have sufficient proof to convict the neighbor? The thieving neighbor escapes paying two-fold restitution. What if he then repents and confesses? He owes his neighbor a 2.4 restitution penalty (2 X 1, plus 2 X .2). What if his crime is discovered later? He owes four-fold restitution for perjury: double what he would have owed if he had been convicted originally.

Payment to the Temple

What would he have owed to the temple in the case of unconfessed perjury? If the trespass offering was one animal if he had confessed after having made a false oath or oaths, presumably the penalty was double this.⁽⁴¹⁾ This follows from my thesis that there is an escalation of penalties. At each step of the legal proceedings, he can confess and bear a reduced penalty. For each level of deception, there are increased sanctions.

God is honored by the very act of self-confession, when such confession has a penalty attached to it. Oath or no oath, the two primary goals of laws governing theft are the protection of property (boundary rights)⁽⁴²⁾ and the compensation to the victim (victim's rights). Earthly civil courts are therefore to safeguard the property rights of the victims, making sure that the appropriate penalty is extracted from the criminal and transferred to the victim. There is no requirement of an additional money penalty payment to the civil court because of a false oath regarding theft. A trespass or guilt offering must be paid to the church.

The false oath before God invokes the threat of the ultimate penalty: the eternal wrath of God, preceded by the physical death of the criminal. Unless a person confesses his false oath in this life, makes appropriate restitution to his victim, and brings a transgression offering, God will collect His own restitution payment, and it is far greater than 20 percent. Ananias and Sapphira lied to church authorities concerning the percentage of their economic gains that they had voluntarily donated to the church. When asked individually by Peter if what they had told the authorities was true, they lied, and God struck each of them dead on the spot, one by one (Acts 5:1-10). This served as a very effective warning to the church in general (v. 11). Presumably, they could have confessed their crime at that point, paying all the money from the sale into the church's treasury, since God was the intended victim of their lies (Acts 5:4). They chose instead to lie. So, God imposed His more rigorous penalty.

 

After the Accusation, but Before the Trial

What if the thief stole an animal, especially a sheep or an ox, and then sold it? If the civil authorities have brought the thief to trial, but the trial has not been held, would he be given the opportunity to confess to the victim, and then go to the buyer, confess his crime, buy it back at the purchase price plus 20 percent, and return it to the true owner, plus 20 percent? This would seem to be a reasonable conclusion. His confession would reduce the cost of prosecuting him and convicting him. Understand, however, that the thief has committed two crimes: the original theft and the defrauding of the buyer. The buyer was led to believe that the thief possessed the legal right of ownership, which was being passed to the new buyer.⁽⁴³⁾ Thus, the defrauded buyer is also entitled to a 20 percent penalty payment, as well as the return of his purchase price. This would make the total penalty 40 percent, since he had defrauded two people: the first by means of the theft and the second by means of his lie.

The thief's confession reduces the possibility that a guilty man will go free and his innocent victim will remain defrauded. Apart from his admission, the judges might make a mistake, especially if the thief commits perjury during the trial. His confession eliminates this judicial problem.

The modern judicial system has adopted an analogous solution: plea bargaining. A criminal confesses falsely to having committed a lesser crime, and the judge accepts this admission and hands down a reduced penalty. This is the way that prosecuting attorneys unclog the court system. The Bible rejects this approach. Plea bargaining leaves the main crime officially unsolved, and it allows the guilty person to appear less of a threat to society than his behavior indicates that he is.⁽⁴⁴⁾ The Bible does recognize the institutional problem, however: the risks and costs of gaining a conviction. Instead of having the criminal plead guilty to a lesser crime, it encourages him to plead guilty to the actual crime before the trial, and thereby receive a reduced penalty.

Civil Identification of a True Church

The question arises: To which church does he owe the payment? I suggest the following. If he belongs to a local church, he owes the payment to that congregation, for he has disgraced it. If he does not belong to a church but the victim does, then he pays the penalty payment to the victim's church: the congregation of God's prosecuting agent. If neither of them belongs to a church, then it would be sensible to allocate the money to the congregation nearest geographically to the residence of the criminal, for he is living inside that church's jurisdiction: the regional boundary in which its prayers are regularly offered.

There is no question about the unbreakable legal relationship between this law and civil theocracy. This law mandates a trespass offering, which means that the law mandates that the civil government enforce an economic payment to a local congregation: either the criminal's, the victim's, or the one closest to where the crime was committed. This raises an inescapable legal question: What is a true church? Answer: one that confesses the Trinity. This law therefore mandates some form of Trinitarian oath-bound civil order, with confessional churches serving as the guardians of the civil oath: the oath required by the civil government in a trial. To put it in terms of traditional U.S. court practice, when a person swears on a Bible in a court of law, there must be a guardian of this oath. The courtroom Bible is not limited to the Old Testament. Because this law was not annulled at Christ's resurrection, it indicates that the church, not the State, is the lawful guardian of the civil oath, and therefore is entitled to a trespass offering when this oath is violated. The payment goes to a church, not to the civil government.

This law requires that the local civil government identify the local ecclesiastical guardians of the oath. It must identify those congregations that are confessionally orthodox and therefore eligible to receive the trespass offering. This authority to identify confessionally orthodox churches implies that members of associations not so identified as orthodox cannot legally be granted the legal status of citizens. In short, the State is a confessional, oath-bound, covenantal institution. It is required to establish what constitutes a valid civil oath, but only after consultation with churches. Churches are confessional, covenantal institutions, separate from the State. They may lawfully impose added confessional requirements beyond the civil oath for their members and officers, but if they do not confess the Trinity, they are not to be recognized as guardians of the civil oath.

Pluralists Object

To escape the Bible's requirement of a civil theocracy -- a confessional civil government -- Christian political pluralists must deny the New Covenant validity of this law. They must also give up the idea that there is a guardian of the oath other than the State. They must deny that the church has the authority lawfully to call down God's negative sanctions against those civil orders that refuse to repent by refusing to re-constitute themselves judicially under a Trinitarian oath. But they fail to specify by what New Testament legal principle this Levitical law has been annulled.

If the State identifies which churches are orthodox, doesn't this make the State the ultimate guardian of the oath? No; God has identified His church as the guardian -- the agency that alone has a lawful claim on the trespass offering. Any State that identifies a guardian other than Trinitarian churches within its jurisdiction will come under God's historical sanctions. Nevertheless, the State is not under the church. It is a legally separate jurisdiction. The Bible does not teach ecclesiocracy: the civil empowerment of the church. The State is bound by its own Trinitarian oath.

If God did not impose His sanctions in history, then either the church or the State would eventually exercise final sovereignty in history, imposing its confession on rival institutions. Because the State possesses greater temporal power than the church does, assuming the absence of God's sanctions in history, this denial of God's sanctions in history necessarily leads to the establishment of a rival theocratic order: Islamic theocracy, Israeli theocracy, tribal theocracy, Shinto theocracy, humanist theocracy (Communism,⁽⁴⁵⁾ Nazism,⁽⁴⁶⁾ political pluralism⁽⁴⁷⁾), or whatever. The guardians of the civil oath become the new priesthood. There is no escape from theocracy. Some god must rule. Some priesthood must represent this god.

Denial and Consequences

Churches today do not teach this view of the civil oath. If they had ever heard of the church's God-given legal status as the guardian of the civil oath, they would deny it. The church has sought to abdicate its responsibility in this area. This illegitimate abdication of authority does not eliminate binding theocratic civil oaths in history; it merely allows representatives of some other god to establish a rival theocratic civil order. There is no neutrality.

Churches today find themselves persecuted by fee-seeking lawyers and the State.⁽⁴⁸⁾ What else did they expect? Did they really believe in the myth of neutrality, that highly convenient judicial King's X of humanist power-seekers, that boundary of deception? The non-revolutionary (post-1535) branches of the Mennonites, Baptists, and Lutherans have always believed in it, of course, but why did Calvinists ever take the bait? Did they really believe in the existence of some permanently neutral civil arena between covenant-breakers and covenant-keepers?

Bible-believing churches publicly proclaim, "We're under grace, not law." This proclamation is utter nonsense; Christians today are in fact under humanist lawyers: a judgment of God that should be obvious to all Christians but which is acknowledged by very few. Because God's church is unwilling to serve as the guardian of the civil oath, the State imposes a rival law-order in terms of a rival oath. The State's goal is clear: to disinherit the church.

Conclusion

We see in this law the application of the Bible's fundamental principle of civil justice: victim's rights. The twin issues in this case involve the defense of a pair of judicial boundaries: private property and the civil oath. The ecclesiastical issue is this: What is the meaning of the trespass offering? I argue that the trespass offering is tied judicially to the defense of the civil oath against the criminal who falsely declares his innocence. That is, there is more to a legitimate defense of the civil oath than the imposition of civil sanctions.

The primary victim of the theft is God, against whose majesty the theft is committed. The secondary victim is the earthly victim. He then becomes the primary agent of God in this legal dispute between God and the criminal. God brings a lawsuit against the criminal in His heavenly court; He authorizes the victim to bring a lawsuit in a civil court. This is the biblical principle of victim's rights.

An important goal of the criminal justice system is to gain a confession from the criminal before a trial is held or a verdict is handed down. This reflects the desire of God to gain a public confession from the sinner before his death, and therefore before his heavenly trial begins.⁽⁴⁹⁾ To gain early confessions, God's law imposes escalating penalties for each formal judicial stage transgressed by the criminal's deceptive activities. Put another way, each time the criminal transgresses one of these legal barriers -- these judicial opportunities for public confession -- the penalties increase.

The court defends the rights of the victim. The church defends the integrity of the court, i.e., its right to be told the truth by the criminal. The criminal's transgression of ownership boundaries sanctified -- set apart judicially -- the stolen property: set it apart judicially. The lying criminal owes the victim double restitution because of the theft if the court convicts him. He owes him full restoration if he admits his guilt before the court tries him. He also owes the victim a double tithe (20 percent) because the act of theft sanctified the stolen goods. Finally, he owes God a sacrifice through the mediating institution of the priesthood because of his false oath in civil court.

The 20 percent penalty payment to the victim is still in force in New Testament times. It was not tied uniquely to the Promised Land or the Mosaic Covenant priesthood. There has to be a double-tithe (priestly) penalty payment in order to de-sanctify the stolen property. He pays this penalty to the victim, not to the church.

If the criminal confesses his sin to the victim before the trial begins, he escapes the threat of double restitution. A 20 percent penalty payment to the victim is sufficient, plus the return of the asset or its present market value. In Mosaic Israel, if he had also lied to the court regarding his theft, he had to offer the sacrifice of a ram. Today, he would confess to church authorities and make whatever sacrifice they impose on him, not to exceed the comparable value of a ram in the Mosaic economy.

 

Summary

The sin in this passage is the deliberate deception of a neighbor.

The essence of the transgression here is false testimony -- an oath violation -- regarding crimes against property.

Two crimes required two acts of restitution: to God (a ram) and to the victim (120 percent payment).

Two agents represented God: priest and victim.

The additional 20 percent penalty was equal to a double tithe.

The Levites guarded the tithe.

Unintentional violations of sacred things mandated a double tithe penalty (Lev. 22:14).

Every owner performs a Levitical function: guardian of God's property.

The act of theft sanctified the stolen property, thereby invoking the double tithe penalty.

The false oath made the stolen item the equivalent of a sacred thing, i.e., sanctified it.

The false oath to the victim was an attack on God's courts: earthly and heavenly.

The victim received the penalty payment, not the civil court. He still should receive it.

The victim was the judicial agent of the civil court, representing himself and God. He still is.

The presence of a victim calls God's heavenly court into session.

The victim has the greatest economic incentive to pursue the criminal.

In an economic sense, the civil court is the agent of the victim.

The way in which the court allocates court costs will shape the decision of the court to proceed with the trial.

To protect the innocent, the State should pay basic fees for both sides in criminal cases when the State prosecutes.

Intercession is the model: a heavenly defense attorney, paid for by the heavenly court.

The civil court defends the victim's rights.

The priesthood defends the civil court from false oaths.

An ecclesiastical act (sacrifice) was required to atone for a civil transgression: the false oath

The civil court defends God in His capacity as King of kings.

The ecclesiastical court defends God in His capacity as Supreme High Priest.

No single earthly court can offer two-fold atonement in history to transgressors.

The church is therefore the guardian of the civil oath.

The State cannot lawfully release anyone from the guilt of a false civil oath.

A public civil oath invokes the authority of the church.

The atheist's oath -- "affirmation" -- is his denial of the church's authority in a civil courtroom.

To accept this oath's validity, the State must create a new oath system, with the State as sole guardian of the civil oath.

A State that guards its own oath has implicitly announced that it has become an ecclesiastical intermediary: messianic.

No State can lawfully pronounce or dismiss God's negative sanctions associated with false testimony in a civil court.

The presence of a civil oath to God acknowledges the non-autonomy of the State.

Political pluralism is a defense of the messianic State.

The ability of a transgressor to make confession before prosecution begins is basic to civil and ecclesiastical mercy.

God subsidizes early confession by imposing reduced civil penalties: 20 percent rather than double restitution.

Plea bargaining -- confession to a lesser crime -- is the modern court system's attempt to reduce penalties for confession.

A required sacrifice points to theocracy.

A theocracy requires the State to identify those organizations that confessionally and structurally constitute a church.

To escape this conclusion, modern pluralists must deny the New Testament validity of this law.

They must abandon the Mosaic law's identification of the church as the guardian of the civil oath: a priestly function.

A State that identifies any institution other than the church as guardian of the oath, including itself, falls under God's threat of negative sanctions.

Whatever institution is identified as the guardian of the civil oath becomes the new church in a new theocracy.

Footnotes:

1. "If a soul commit a trespass, and sin through ignorance, in the holy things of the LORD; then he shall bring for his trespass unto the LORD a ram without blemish out of the flocks, with thy estimation by shekels of silver, after the shekel of the sanctuary, for a trespass offering" (Lev. 5:15).

2. Gary North, Tools of Dominion: The Case Laws of Exodus (Tyler, Texas: Institute for Christian Economics, 1990), pp. 513-14.

3. The New American Standard Version makes these crimes clearer than the King James Version does.

4. North, Tools of Dominion, pp. 278-80.

5. Gordon J. Wenham, The Book of Leviticus (Grand Rapids, Michigan: Eerdmans, 1979), p. 108.

6. North, Tools of Dominion, pp. 278-80, 289.

7. Jesus warned men not to make oaths to each other: "But let your communication be, Yea, yea; Nay, nay: for whatsoever is more than these cometh of evil" (Matt. 5:37). He was not speaking of civil or ecclesiastical trials, in which an oath was legitimate because both State and church have been entrusted with the authority to bring God's negative sanctions in history.

8. Ray R. Sutton, That You May Prosper: Dominion By Covenant (2nd ed.; Tyler, Texas: Institute for Christian Economics, 1992), ch. 4.

9. Andrew A. Bonar, A Commentary on Leviticus (London: Banner of Truth Trust, [1846] 1966), p. 109.

10. See Chapter 37, below.

11. See below: "Restitution Plus a Trespass Offering."

12. If someone other than the victim first discovers the violation, he is to inform the victim or the person most likely to be the victim. To fail to do this is judicially to become an accomplice of the criminal.

13. The ultimate price of perfect justice was paid by Jesus Christ's act of comprehensive redemption at Calvary. Without this representative payment, God's perfect justice would have demanded the end of the Adamic race at the conclusion of Adam's trial.

14. R. J. Rushdoony, The Institutes of Biblical Law (Nutley, New Jersey: Craig Press, 1973), p. 123.

15. In this sense, this singling out of a prosecutor parallels the Mosaic Covenant's authorization of the blood avenger (kinsman-redeemer) to pursue and execute a person suspected of murder of the blood avenger's nearest of kin (Num. 35:19-27).

16. North, Tools of Dominion, pp. 279, 294-95.

17. For examples of this growing paralysis in the American legal system, see Macklin Fleming, The Price of Perfect Justice (New York: Basic Books, 1974).

18. The case was Gideon v. Wainright (1963). A movie was made about this case, Gideon's Trumpet.

19. The U.S. Constitution does allow enslavement for criminal convictions: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place under their jurisdiction" (Amendment 13 [1865], emphasis added.) Early in the twentieth century, three Supreme Court cases negated state laws authorizing peonage for default on private debts: Peonage Cases (1903), Bailey v. Alabama (1911), and United States v. Reynolds. The Court has never voided peonage for criminal convictions, but local governments never enact such statutes.

20. North, Tools of Dominion, pp. 295-300; Victim's Rights: The Biblical View of Civil Justice (Tyler, Texas: Institute for Christian Economics, 1990), pp. 35-41.

21. This does not mean that they should not be allowed to buy the best defense they can afford after a trial has begun. But they should not be given the ability to buy their way out before a trial.

22. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Massachusetts: Harvard University Press, 1983), Preface.

23. Seen on a T-shirt: "There will be no plea-bargaining on Judgment Day."

24. When Israel fell in A.D. 70, she had become like all the other pagan nations. She could no longer offer efficacious sacrifices for them or for herself. From that point on, only the sacrifice of Jesus Christ at Calvary could serve as any nation's atonement -- covering or ransom -- before God.

25. Gary North, The Sinai Strategy: Economics and the Ten Commandments (Tyler, Texas: Institute for Christian Economics, 1986), pp. 52-56.

26. T. Robert Ingram, The World Under God's Law (Houston, Texas: St. Thomas Press, 1962), p. 46.

27. Rushdoony, Institutes of Biblical Law, p. 115.

28. The State, in turn, is responsible for the preservation of the legal environment that protects the church. The church is not institutionally autonomous, either.

29. Cited by Rebecca West, The New Meaning of Treason (New York: Viking Press, 1964), p. 12; in Rushdoony, Institutes, p. 118.

30. Gary North, Political Polytheism: The Myth of Pluralism (Tyler, Texas: Institute for Christian Economics, 1989).

31. This section, with minor modifications, is an extract from Tools of Dominion, ch. 19, "Safekeeping, Liability, and Crime Prevention," pp. 620-29. I reprint it because not all readers will have access to Tools. Also, the problem of determining the proper application of the 20 percent penalty is so complex that I decided that a footnote to Tools would be insufficient. The exegesis of this passage was the most difficult single exegetical task I encountered in Tools.

32. I believe the confession had to come prior to testimony from any witness or the presentation of physical evidence. In American jurisprudence, testimony of the suspected criminal before a grand jury, which has the authority to indict a person, is the judicial equivalent of the Old Testament court's preliminary inquiry. Once the trial begins, it is too late to escape double restitution. This reflects the principles of God's court of permanent justice: once the accused is standing before the throne of judgment, there is no possibility of escaping the maximum sentence. The counter-argument is that prior to the decision of the jury, the confession would reduce the costs of the trial and reduce the risk of handing down a "not guilty" decision to a criminal.

33. Achan confessed to his theft of the forbidden items after the trial had begun, and he was then executed (Josh. 7:20). However, this case may not be a relevant example; he confessed only after Israel had suffered a military defeat, with the loss of 36 men (Josh. 7:5). His trespass required life for life at that point, confession or no confession. Thus, I do not appeal to this test case to defend my thesis. Still, I could be wrong about this. It may be that even after the trial begins and the oath is imposed, but prior to the decision of the jury or the judges, he has an opportunity to repent. But once the court hands down its verdict, he is trapped.

34. I am not arguing that salvation is by works. It is by grace (Eph. 2:8-9). But let us not forget Ephesians 2:10: "For we are his workmanship, created in Christ Jesus unto good works, which God hath before ordained that we should walk in them." I am arguing that without obedience, our faith is dead. James 2:18 says: "Yea, a man may say, Thou hast faith, and I have works: shew me thy faith without thy works, and I will shew thee my faith by my works." And in James 2:20, we read: "But wilt thou know, O vain man, that faith without works is dead?" The outward obedience of the criminal is supposed to be demonstrated by his willingness to make restitution to his victim.

35. Jacob Milgrom, Cult and Conscience: The "Asham" and the Priestly Doctrine of Repentance (Leiden: E. J. Brill, 1976), p. 100.

36. Ibid., pp. 100-1.

37. Moses Maimonides, The Book of Torts, vol. 11 of The Code of Maimonides, 14 vols. (New Haven, Connecticut: Yale University Press, [1180] 1954), "Laws Concerning Theft," Chapter One, Section Five, pp. 60-61.

38. North, Tools of Dominion, ch. 11: "Criminal Law and Restoration."

39. Ibid., pp. 626-27.

40. This assumes that the criminal cannot return the original item to the victim.

41. It could be argued that the penalty was death: a high-handed false oath that was not confessed.

42. "Thou shalt not remove thy neighbour's landmark, which they of old time have set in thine inheritance, which thou shalt inherit in the land that the LORD thy God giveth thee to possess it" (Deut. 19:14).

43. See Tools of Dominion, ch. 17, "Proportional Restitution," under the subsection, "The Economics of Restitution," pp. 511-19.

44. I once saw a Christian lawyer wearing a sweat shirt with this message: "There will be no plea bargaining on Judgment Day."

45. Gary North, Marx's Religion of Revolution: Regeneration Through Chaos (Tyler, Texas: Institute for Christian Economics, [1968] 1989); F. N. Lee, Communist Eschatology (Nutley, New Jersey: Craig Press, 1974).

46. Let us remember that the phrase "Heil Hitler" is literally translated "Salvation Hitler." See Thomas Schirrmacher, "National Socialism as Religion," Chalcedon Report (Dec. 1992), pp. 8-11. The most forthright declaration of this religion that I have come across is by James Larratt Battersby, The Holy Book of Adolph Hitler (Southport, England: German World Church of Europe, 1952). Battersby announced: "Nordic man, with whom walks eternally the Spirit of Adolph Hitler, stands on the Rock of the Redeeming Blood of his Race" (p. 15). On the suppression of the German churches, see J. S. Conway, The Nazi Persecution of the Churches, 1933-45 (New York: Basic Books, 1968). On Lutheranism's roots and theological liberalism's roots of the surrender by the German churches, see Paul B. Means, Things That Are Caesar's: The Genesis of the German Church Conflict (New York: Round Table Press, 1935), Part I.

47. North, Political Polytheism.

48. J. Shelby Sharpe, "The Nuclear Attack on Christianity in America Has Begun in Earnest," Chalcedon Report (Nov. 1990), pp. 2-9.

49. "That if thou shalt confess with thy mouth the Lord Jesus, and shalt believe in thine heart that God hath raised him from the dead, thou shalt be saved. For with the heart man believeth unto righteousness; and with the mouth confession is made unto salvation" (Rom. 10:9-10).

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