Recovering True Law - American Reformer

A Critique of Theonomy

Arthur Leff in his essay, “Unspeakable Ethics, Unnatural Law,” works through the problem of jurisprudence today as one of the abandonment of God. In brief, by removing a higher standard of justice outside ourselves, the foundation of law must necessarily become that of either total anarchy rooted in every individual, or total statism rooted in he who has the greatest power to enforce it. But, “if each person is a Godlet, there is no room for a valid society; if each society is God, there is no space for individual freedom.” This leads to the question that “if what we find is not an authoritative Holy Writ but just ourselves, just people making law, how can we be governed by what we have found?” Nevertheless, killing babies is bad, starving the poor is wicked, and evil is a real thing, and he concludes “sez who? God help us.”

A decade before this was published, R.J. Rushdoony gave a series of talks on where the law in America has gone wrong, and what we must do to recover justice and liberty. This was the beginning of the Christian Reconstructionist and Theonomy movement. He argued that the once ruling natural law philosophy “has given way to positivism.” While lawyers once said that there was a “higher law which man’s enlightened reason can discover… and is the true law by which men and nations must be governed,” for modern thinkers “the only real law is positive law, the law of the state.” The purpose of law, he said, is life, and behind every system of law is a God above it all. Over the last century, “Darwinism dealt natural law,” and Christian thinking in general, “a body blow.” If chaos is ultimate, change is the only constant factor, and above us is only sky, “then law is a changing factor, and we cannot have a belief in an absolute law.” Rushdoony and Leff are in agreement in their description of the legal landscape today.

Theonomy

But Rushdoony did not call for a return to natural law in order to resolve the problem. He was, in fact, critical of natural law, and said that natural law theorists were “not agreed amongst themselves… Thus, experience, not a higher law of logic, was basic to law… natural law is a law which is as variable as the persons expounding it… [thus, modern jurists conclude that] the rationalism of natural law philosophers is a poorer guide than the experience of the people as embodied in the state.” Natural law, on his reading, has shown itself to be incoherent and unstable, and thus positivism has taken its place. This is where the Reconstructionists position themselves as an alternative response to the breakdown of natural law.

These men, whose thoughts “are governed by the Bible,” see law as governing over nature, rather than being of nature. Rushdoony declared that, contrary to the natural law theorists (according to him), theonomists do not believe that nature has any “power, mind, consciousness, or will in and of itself… It is absurd to personify nature and to ascribe to it a law or purpose.” Nature cannot be normative, because of the sinful and fallen state of the world. He claimed that natural law theory “locates the ultimate law within nature, therefore locating the sovereign power within nature also.” He said that for a standard of law, “we must look beyond nature to God… The answer to natural law and legal positivism is revelation.”

Neither positive law, nor natural law as he conceived it, can “reflect more than the sin and apostasy of man: revealed law is indeed the need and privilege of Christian society.” If from nature we find order, then it must be the source of true order, and thus both individualistic anarchy and statism “have been two rival humanistic claimants to the right to represent natural law.” Against this, “Biblical law” restrains all institutions from exercising any prerogatives of God “unless specifically delegated to do so, within the specified area of God’s law.” Rushdoony went so far as to deny any concept of “nature” as being Biblical; for “God is the source of all natural phenomena.”

Greg Bahnsen boldly proclaimed that “theonomists are committed to the transformation of every area of life, including institutions and affairs of the socio-political realm, according to the holy principles of God’s revealed word.” Anything which would claim to be “Christian” must be “explicitly justified by the teaching of God’s revealed word.” He denied any possible source of ethics or societal standards “outside of the Bible which men are obliged to obey — such as human reason, traditions, or current fashionable trends.” This is why theonomists stand on their core distinctive: the standing laws (civil laws) of the Old Testament law are still standing today, and are the only standard of law which may govern. They accept the threefold division of the law (moral, ceremonial/cultic, and judicial/civil), and accept the ceremonial as no longer binding. Their works, it must be said, have been successful in moving the reader to accept their believing/righteous vs unbelieving/worldly binary.

This makes sense of Rushdoony’s tirade against the Reformers for their acceptance and revitalization of natural law. To forsake the law, that is the civil codes of the Torah, is to “forsake the blessing and victory which the law confers upon all who are obedient.” Thus, by “denouncing” God’s law and embracing Thomistic natural law, “the Reformation was stillborn.” The Bible “does not recognize any law as valid apart from the law of God.” But “wherever nature has been held to be the source of law, law has ended up only reflecting or being identical with the sin of man,” so when Christians instead “adopted a Greek and rationalistic concept of natural law [and attempted] to graft it into Biblical religion,” they gave a “firm ground” for the persecution of the early Christians.

Further, natural law attempts to “present us God’s world without the God of Scripture and Scripture’s law… The choice is thus not between Biblical law and natural law: it is between law and no law.” Rushdoony believes that natural law theorizing “rests itself on the ultimacy of man’s mind,” and points to the reality of fallen man’s “use of his reason as an instrument of his warfare against God.” Bahnsen insists, in answer to man’s sinfulness, that since the Torah is a “transcript of God’s moral character” it is neither abstract nor impersonal, and thus “closes the door” to any abstraction of the law. The civil code still stands today, and this is the only substantive and stable response to the immoral positivism of today.

Late in his Institutes of Biblical Law, Rushdoony has a chapter on the development of law in western society. Within this chapter is a section on the influence of Jews on late medieval and Reformation era Christendom (pages 788-789). This is worth reflecting on carefully, for it reveals the underlying philosophy of law (and interpretation of history) which Rushdoony held. Cities were largely products of merchantmen, whose communities were predominantly Jewish. Thus, commercial and urban law had its origins in Jewish communities “and their intense devotion to Biblical law.” This particular presence and influence was only increasing for the Jews.

These Jews “bent the [Christian] rulers of Europe to their will,” forcing a change in Christianity’s policy towards the Jews, and even gaining influence over bishoprics. They “forced the prelates of the Church to become their benefactors.” During an era “in the midst of almost universal personal subjugation, the Jews alone were politically free” — this reveals a “dark ages” view of the medieval era, rather than one of the flourishing of Christendom. These Jewish communities “instituted practices and procedures that gave them great power and resilience, enabled them to deal with the princes of Church and state… and created for them opportunities for powerful economic growth and great physical expansion.”

This power, which Rushdoony praised, was “grounded in a systematic and faithful obedience to Biblical law… Life in a community meant life in the law of God” (emphasis mine). For Christian legal theorists, this ought to be shocking. What could lead a Christian philosopher to such a conclusion? Namely, that Christians for most of Medieval and Reformation Europe were loyal to “Greek rationalism” and tried to somehow slip the Bible in, and thus were nearly entirely unfaithful to the word of God. Meanwhile, the Jews who rejected their Messiah, and thus entirely miss the Spirit of the law of Scripture, were always grounded in systematic and faithful obedience to Biblical law.

Harold Berman, in the introduction to his seminal work The Nature and Functions of Law, describes the “imperative theory” of law — that is, the emphasis in which positivism resides. He says that this “concept emphasizes the relationship between law and political power; it sees both the ultimate origin of law and the ultimate sanction of law in ‘the will of the state.’” He goes on to describe positivism as “the view that law has its origin and its sanction in the will of officials and ultimately of the state,” which stresses especially the “authoritativeness of legal rules.” He cites Thomas Hobbes as a major philosophical source to this kind of thinking. “Law properly is the word of him, that by right hath command over others… Law is a command proceeding from the supreme authority… and addressed to the persons who are subjects of that authority.”

To restate this view: law is the specific word and command, usually codified, of the supreme power. How do we know what the law is? By asking “what are the words the authority said?” The guy in charge decreed it, and thus it is law. Related to this emphasis in law is that of the textualist: the “position that texts can be interpreted without any reference, express or implied, to the meaning intended by the author of the text… [it] is the insistence that intentions play no role in the production of the meaning.” The application of law is merely a game of dictionary, applying the wooden meaning of the words in the statute.

In other words, theonomists have implicitly affirmed this Hobbesian, positivist, and textualist view of law, and their answer is “God is the guy in charge rather than so-and-so.” This is how a Christian can come to the conclusion that medieval Jews were more faithful and obedient to God than Christians, for they continued to woodenly obey the words on the pages of the Mosaic Polity despite their rejection of the intentions of the Law-Word and Lawmaker.

Biblical Law

Is this how Biblical law actually works? Is it how the Israelites would have undertaken their obedience to God’s law? Is such a rejection of natural law as inconsistent with Biblical law valid? Recent scholars of the Old Testament and theologians have begun to criticize this anachronistic conceptualization of the Torah. Their core objection is to the threefold division of the law, which is crucial to the theonomist position. The problem is that this division is “arbitrary and represents an anachronistic attempt to simplify the Old Testament for purposes of comprehension and lucid application” (Ben Crenshaw, New Covenant Fulfillment and the End of the Law). No Israelite would have divided the Mosaic polity into these three categories of moral, ceremonial/cultic, and judicial/civil. Torah was not an abstract set of legal codes systematically spelled out in a comprehensive treatise — it was a narrative, one fulfilled in the work of Jesus Christ, which was given to the people at a “critical moment in their national formation, that served as the foundation for their covenant with God.”

We must be skeptical of the tendency to “Project modern, positivist assumptions about how law ‘worked’ onto biblical Israel… How can we apply biblical law when we are not reading it properly?” The Torah rejects a “rationalist approach to determining legal values… in favour of a semiotic one.” It is unlikely that ancient Israelites would have ignored the details to then abstract into general concepts such as “right to life and property” (Burnside, The Radicalism of Biblical Law). This sort of approach which hovers over the text and presents them formally as if they were modern statutes or discusses them in abstracted terms are “so misguided.” Biblical law differs from modern law in its form — lacking hard legal definitions and systematic comprehensiveness — as well as in its content; such as its application to individual attitudes (Exodus 20:17) and thoughts (Deuteronomy 29:18-19), areas which moderns, theonomists included, are quite uncomfortable going. It also differs in its legal interpretation.

A modern and positivist jurisprudence is “literal or semantic,” and “sees the rule as covering all cases which may be subsumed under the meaning of its words. This often amounts to paraphrasing the legal rule and substituting one set of words with another.” But this older way of thinking asks “What does this case make you think of?” It is “picture-oriented or imagistic,” rather than literal. Under this framework, one reasons through these case laws as examples — really, it is a form of common law reasoning, for “the further the real-life case is from the typical case, the less likely it is that the rule applies, and the more room there is for negotiation between the parties.”

Bahnsen insists that the Old Law is a “transcript of God’s moral character,” and is neither abstract nor impersonal. He insists that the law as found in the Old Testament commandments is a perfect reflection of God’s character, and is validated by Christ — in arguing this, he shuts the door to the necessary process of interpretation and application for the Law today. Bahnsen does not say that the principles behind the law are the immutable reflection of God, “but the specific commandments themselves.” Why are the commandments in their final form, and not just the principles behind them, not eternally applicable? The theonomist is forced to engage in abstraction that neither he nor the Israelites are comfortable with. Somehow, it is only the “moral law” behind the civic laws which are transcultural.

Torah never aimed to be a manual for everything. Many problems are never addressed in the Torah, even ones which existed in the Ancient Near East. When faced with a problem not addressed in Moses’ case law, the Israelite is expected to apply the wisdom he has gained from meditating upon the Torah — thus, “while Biblical law is incomplete, its purpose is to teach wisdom, which is complete.” The three “types” of law are “inextricably intertwined,” which makes it nearly impossible to genuinely tease them apart and label them ‘civic,’ ‘ceremonial,’ and ‘moral.’ Reconstructing biblical law’s use in Israel reveals that it was “characterized not only by brevity but an allusive style which presupposes knowledge of context and background (literary as well as social) not possessed by the typical twenty-first century Westerner.” We must look beyond merely the dictionary definitions of the words on the page in order to understand the “world of values and implicit social knowledge” which the text bears. All of the Torah, all 613 commandments, were given by God and understood by Israel as an undivided and unified whole. All the prophets and apostles treat the Old Testament law as a unity, which was accepted as a single code stipulating the terms of the old covenant, until it was brought to an end by Christ and replaced by a new covenant stipulated by the Law of Christ. If this understanding is correct, then the neatly divided classification and interpretation of the law fails, and consequently the central argument of the theonomist falls with it.

Natural Law

What about theonomist critiques of natural law? Jonathan Burnside in his chapter on the relationship between biblical law and natural law works through a defense of a higher law in accordance with God’s creation as being prior to the given law of Moses. When Cain is punished, why is his behavior wrong? It is not because God had expressly forbidden it, because He had not. It is because his murder misunderstood “humanity’s mandate to replicate the image of God by creating human life, not destroying it.” When the sons of God are punished for sleeping with the daughters of man, how could they have known what they did was wrong? God never expressly forbade such actions. Rather, it is because it misunderstood the limits set upon sexual expression in Genesis 1-2, i.e., the creation. God decides to flood the earth “on account of the way in which the earth had been ‘filled with violence’ (chamas),” yet there is no indication that this chamas had ever been specifically prohibited by God. It is, however, a reversal of the command to multiple and fill the earth.

Burnside says that while the formula, mode of expression, and context of the Mosaic law are revelatory, the “basic legal content has nothing tremendously original about it.” Scripture in fact “reminds us” of what it means to be human, and calls us to live such integrated lives. If we had never fallen, would God still have handed down the Scriptures and the Mosaic polity? Would men have formed local customs and rules which govern their particular societies, which differ from others in the sinless creation — that is, could sinless Americans still have the rule requiring drivers to be on the right side of the road, while sinless Englishmen are on the left? The “normative content” of the polity delivered by Moses was not first and only delivered on Mount Sinai. Thus, there is “some standard by which YHWH’s laws” can be measured, which is logically prior to those given laws. There is in fact a higher law of God which accords with the telos of creation (or nature). Despite creation’s marring, there is still a telos and correctly ordered nature which man ought to obey.

In Genesis 9, God does not directly intervene for Ham’s offense. Instead, adjudication and punishment are “presented as being carried out by a human being” — divine justice is carried out, as practicable, by humanity. Burnside says that “adjudication is part of humanity’s divinely devolved responsibility to order the postdiluvian world. It is part of our vocation.” Biblical law, that is the Mosaic polity, “reflects nature in that it is the most perfect expression of law that is in accordance with creation rightly understood.” Or, in the words of Franciscus Junius, this was a “perfect example” of the natural law applied to human law. The purpose of law is to enable us to love God and love our neighbor, and the Mosaic polity was a perfect example in accordance with nature and the particularities of that nation. In biblical law, love for God and neighbor “influences the design of our financial and lending relationships, our political relationships, our conditions of employment, our impact upon the environment, and so on” — in brief, “love is institutionalized.”

So how is our law to teach us how are we to love our neighbor? If we were ancient Israelites, we looked to follow the Mosaic polity. But as Americans in the 21st century, we look to the Mosaic polity as the premier example of faithful legislation and seek to imitate this application of God’s natural law into our historical and political context. The Torah is a perfect example of human law, and as such was not the sole, absolute positive law which must be followed by all nations.

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