General Equity & the Mosaic Penalties
General Moral Principles of The Law in Modern Societies
“I have seen an end of all perfection: but thy commandment is exceeding broad.”
– Psalm 119:96, KJV
In Gary North’s foreword to Covenant Enforced, a collection of Calvin’s sermons on Deuteronomy 27 and 28, he writes, “‘Was Calvin a theonomist?’ These sermons reveal clearly that the answer is yes.” In one sense, he was right. Calvin certainly believed in the applicability of the principles of the Mosaic law to his own political context, even down to particular punishments and the threat of divine curses for failure to implement them. But the theonomy of Calvin and the broader Reformed tradition is not the capital-T Theonomy of Rushdoony or Bahnsen.
Central to classical reformed political theory is natural law or “the common law of nations,” which Rushdoony describes as “heretical nonsense” that constitutes an abandonment of divine law and leads inevitably to “moral and legal relativism.” In fact, when Calvin does advocate for the punishments of the Mosaic law, and warns of the same covenantal curses that Israel faced under the Mosaic administration, his appeal was not to the abiding validity of the Mosaic law but to natural law.[1. Calvin, for instance, explains in his comments on Leviticus 20 that God “pronounces it to be a capital crime, if any had sinned against the law of nature.”] Further, few in the Reformed tradition would have agreed that the civil magistrate has no ability to bind consciences in civil matters without a Mosaic proof text. Therefore, the rejection of natural law and the biblicist approach of modern Theonomy can make the identification of the Reformed tradition as “theonomic” somewhat misleading.
Despite its differences from Theonomy, the Reformed tradition is no help to those seeking an alternative that better suits their modern liberal sensibilities. What is most offensive about Theonomy is its insistence on the institution of Mosaic penalties, and on that matter, there is a great deal of agreement. While the Reformers certainly did far better math to solve the equation, they still arrived at a quite similar answer.
The standard classical Reformed position maintains that while the Mosaic Law is not binding in exhaustive detail, insofar as it concerns the particular circumstances of the nation of Israel, its “general equity” is still binding. By “general equity” is meant the aspects of the Mosaic Law that are not rooted in circumstance but in “the principles of reason and nature,” i.e. “natural” or “common” law.[2. Jus Divinum, XIV.2.] Junius explains it in this way:
As we have established before, it is clear, from the law of Moses and from other related laws, there are two bases for the law – common law and singular law. Common law is the law given by God through Moses to the Jews as members of a larger community – humankind. Singular law or particular law given by God to the Jews as members of a more restricted community – their religious community…
…and the principles underlining the common and civil law of Moses still apply today, because the underlining basis for justice and law is one and immutable; but the circumstances, which are subject to change, imply that analogy, with respect to the law, may allow certain changes.
The common law is the moral law, expressed in the Ten Commandments. Thus, because the civil magistrate is bound to the common law, he is required to “suppress crimes against the first as well as against the second table of the Commandments of God.”[3. Gallic Confession, XXXIX.] It might be supposed that this only entails the general principles that these things are immoral and should be suppressed, not the degree of their immorality or how they should be suppressed. But the general equity of the Law includes both the fact of their immorality as well as the particulars of their implementation.
Not only do the Ten Commandments tell us what ought to be suppressed by the civil magistrate according to the natural law, but also any law “which pertains to the kinds of punishments sanctioned to protect the authority of the Ten Commandments of God” is binding “today no less than… in the past.”[4. Johannes Piscator. Aphorismi Doctrinae Christianae, 17–18.] As Alting writes, “But insofar as [the Judicial Law] concerned common right, enacted according to the law of nature for all men together, of which sort are the laws concerning the punishments of crimes, these same all remain.”[5. Alting. ‘7th Place: of the Law of God’ in Common Places in The Scriptural Theology of Heidelberg, vol. 1, p. 112, trans. Adam Brink & Travis Fentiman.]
This does not mean that the same mode of punishment must be prescribed in all human laws; It is not a grave injustice, for instance, if a firing squad is chosen where Moses prescribes stones. Rather, they are only binding “insofar as the substance and proper end” are concerned. Therefore, while a ruler is at liberty to modify the law as is fitting to the circumstances of his people, he is to do so without disregarding the cause and end of the punishment prescribed in the Old Testament. As Owen states, “The modification of punishment respects either its appointment or infliction… But not even in a human court can any such modification be admitted as would render the punishment useless in respect of its end…”
In discussions of this principle, special emphasis is placed upon the abiding validity of the Mosaic Law’s capital punishments in particular. For instance, Vermigli laments that “it is not well ordered, that the punishment of death is not in use” as prescribed in Leviticus and Deuteronomy. Bucer likewise argues, in De Regno Christi, that a Christian ruler who does not “follow most studiously [God’s] own method of punishing evildoers… is certainly not attributing to God either supreme wisdom or a righteous care for our salvation,” and thereafter provides an extensive list of Mosaic capital punishments, claiming they must be ordered in “every state sanctified to God.”
In The Mosaic Polity, Junius devotes a chapter to discussing the relevance of Mosaic capital punishments, and his discussion is worth quoting more extensively:
Therefore, we say that whoever by the common law is civilly liable to the death penalty according to the law of Moses must be likewise held liable to death now. That is, the one sentenced to death according to the rationale prescribed by God must also be sentenced to death by the judges…
But in the law of the circumstances, as in the deeds, a distinction must be made according to the analogy of the deeds. For it could happen that circumstances are added to this or that wicked deed that aggravate or alleviate the mode of that crime with respect to the judgments. From this it happens that those who have been sentenced to death civilly by the common law should be simply bound to the death penalty, but this punishment is carried out more heavily or lightly by the just sentence of the judge. First, those whom the law sentences to death by fire can be punished by the choice of the judge, according to the circumstances of the deeds, by hanging, sword, stoning, or other such means. Next, in fact that punishment by fire can itself be set up as a heavier or lighter punishment. So a judge shall have satisfied the common law by sentencing a guilty man to death, but he shall have satisfied the circumstances according to a certain particular law in the judgment of a good man if he determines to inflict a harsher or lighter death on a guilty person. Finally, it also frequently happens that what is a capital crime by the common law simply, may be punished more lightly according to the circumstance attending the deeds, which practice only a Tenedian person or a strict Draco is able to condemn in this way.
In other words, those worthy of death according to the Mosaic Law are also to be put to death now, but not without discernment of God’s rationale for prescribing that punishment and the analogy of the crime committed to the relevant crime described in the Law. It is at the discretion of the magistrate to determine, based on how closely the circumstances of the crime fit those described in the Mosaic Law, the degree of severity in the method of execution.
While there certainly are variations in how the relationship of the Mosaic Law to natural law has been articulated in the Reformed tradition, this particular articulation is certainly prominent, being present in Bucer, Bullinger, Junius, Piscator, Alting, Cartwright, Gillespie, and Owen, among others. Consequently, it cannot be said by the Theonomist that the Reformed understanding of natural law constitutes an abandonment of divine law, nor will the one who fears Theonomy for its “archaic” harshness and illiberalism find it any less concerning. It contains all the same offensive rough edges, just without the 20th-century innovations.
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