A Brief Explanation and Defense of General Equity

 

Defining Law in General

“Law, in its most general and comprehensive sense, signifies a rule of action.” (William Blackstone, Commentaries on the Laws of England, intro., sect. 2)

“Law is a rule and measure of acts, whereby man is induced to act or is restrained from acting: for "lex" [law] is derived from "ligare" [to bind], because it binds one to act. Now the rule and measure of human acts is the reason, which is the first principle of human acts, as is evident from what has been stated above (I-II:1:1 ad 3); since it belongs to the reason to direct to the end, which is the first principle in all matters of action, according to the Philosopher (Phys. ii). Now that which is the principle in any genus, is the rule and measure of that genus: for instance, unity in the genus of numbers, and the first movement in the genus of movements. Consequently it follows that law is something pertaining to reason..” (Thomas Aquinas, Summa Theologiae, II-I, Q. 90, art. 1)

“Even if, in fact, all just laws come from God, and have been established by the eternal reason of his will and even if in this respect, they are all divine, still because of the variety of people and of methods by which they have been revealed and spread, they occur in three types: natural law, human laws, and divine laws.” (Jerome Zanchius, On the Law in General, trans. Jeffrey J. Veenstra [Grand Rapids, MI: Christian Library Press, 2012], pg. 8)

The chief end of law is towards the common good of the people. The chief cause of obligation is the supreme will of God, as James Wilson said. The genus and specific difference of law is that it is an ordering of reason toward the common good of the community. This ordering of reason consists in 1) the reason of the one who orders; 2) the reason of those who are government; 3) the very reason of ordering between both. 

We can divided the law into the eternal law of God, or laws established in time. The former is defined by Junius as “the immutable concept and form of reason existing in God.” (Franciscus Junius, The Mosaic Polity, trans. Todd M. Rester [Grand Rapids, MI: Christian Library Press, 2015], 42). The latter are divided into natural laws and human laws. By "human laws", we mean those positive statutes of nations and courts throughout history. This would include "common law", i.e. the unwritten precedents of law, especially in England's history (as a key example). 

The positive laws of nations and political laws are, or at least should be, derived from the principles of natural law. This may be seen in the distinction between the letter of the law and the spirit of the law. For example, take a law in which a besieged city is not allowed to open the city gates. The spirit of this law is for protection against a hostile enemy. But if in the case of a battle, they did not open the city gates to that nation’s soldiers and they were all slaughtered outside, then this would be a violation of the spirit of the law.

“The law of nature is immutable; not by the effect of an arbitrary disposition, but because it has its foundation in the nature, constitution, and mutual relations of men and things.” (James Wilson, Lectures on Law, part 1, ch. 3)

The Judicial Laws of Moses

The written law has three basic parts: commands, promises, and threats.

Leviticus 19 is an example of a passage containing moral (vv. 11-13), ceremonial (vv. 5-8), and judicial laws (vv. 9-10). 

Moses himself teaches some type of distinction between the Ten Commandments and other laws in Deuteronomy 4:13-14: “And he declared unto you his covenant, which he commanded you to perform, even ten commandments; and he wrote them upon two tables of stone. And the Lord commanded me at that time to teach you statutes and judgments, that ye might do them in the land whither ye go over to possess it.”

In a civil state or commonwealth, laws are made with respect to four social categories: —

1) Between the Magistrates and the citizens

2) Between the citizens themselves (a few examples, among many, would be Num. 31:33-34; Exodus 21-22; Leviticus 19:13; Deuteronomy 19:4-7, 15-21)

3) Within the household (the most basic societal unit), between husbands and wives, masters and servants, parents and children.

4) Between citizens and foreigners.

The Jewish state and its government contained a mixture of monarchy and aristocracy.. It had monarchy in that the Lord chose one man to represent the people of Israel (Deut. 17:15; Num. 27:16), as with Moses and Joshua, and then the kings during the period of division between Israel and Judah. It also had aristocracy in terms of there being the ruling 72 elders over the people. Deuteronomy 1:15 says “So I took the leaders of your tribes, wise and reputable individuals, and installed them as leaders over you.” Deuteronomy 16:18 shows that these leaders were to be native Israelites from among the people, and not foreigners.

In the judicial laws of Moses, the principle and end of the laws is divine and immutable, however their matter and form may be mutable.

In the immutable part of political laws (and therefore the Mosaic judicial laws) we distinguish the origin, object, and end. The origin is that from which the law flows as its proper source, and the object is that which the law regulates. 

Franciscus Junius cites the warnings against familial idolatry (Deut. 13:6-8) and the administration of the death penalty to witches (Exodus 22:18) as examples of immutable laws, since they proceed from pure and unalterable principles, namely that the Lord alone is to be worshiped and invoked. Furthermore, in the case of punishing witches, Scripture tells that the end of such laws is the glory of God (Deut. 18:12-13). Therefore, there is a perpetual obligation of the moral equity in such a law. 

There are particular determinations in the judicial laws of Moses that are mutable. In particular, laws are mutable if they were made to Jews insofar as they were Jews, as distinct from common and natural law which was made to them as a human nation like others. 

For example, it is part of the common law of nations and the light of Nature that theft should be punished by the civil magistrate, however the specific manner or degree of that punishment may vary according to circumstances. In the Mosaic law, one such penalty for a man who stole livestock (such as an ox or sheep) was that the offender would restore five oxen to the person he stole from (Exodus 22:1-4). However, this specific penalty is not binding on all nations today, though the principle of punishing theft (generally considered) is obviously binding. 

Samuel Rutherford made a strong case for why the moral law binds the civil magistrate to punish arch-heretics and false prophets who seduce others to their eternal perdition (I hope to address the civil punishment of heretics in another post soon, Lord willing). The seduction of souls is an act against the moral law. Hence, the New Testament warns us against such people (Matt. 7:5; Rom. 16:17). The punishment of such wicked men pertains to the moral law and has perpetual obligation. The punishment of it also pertains to natural law, hence Job, a Gentile, could say that it was to be punished by the judge (Job 31:26-28). In general, the promotion of the worship of the true God pertains to the light of nature, hence it was justly done by Gentile kings such as Darius (Daniel 3:29) and Artaxerxes (Ezra 7:26-27). Even pagan and heathen nations punished public atheism (Plato, Laws, Book 10, 884a). 

Reformed divines also explained that the Judicial Law can be considered in three different respects:

“The judicial law is entirely abrogated [1] so far as it concerns the distinction of Jews from Gentiles, and the typical signification of the kingdom of Christ. However, [2] as far as it concerns a form of civil government, it is abrogated in some particular aspects. For whatever was a particular proper right, such as peculiarly concerned the Jews, of which sort was the law concerning the office of the Levites, as another concerning inheritances not being transferred from one tribe to another, all of this kind have ceased. But [3] insofar as it concerned common right, enacted according to the law of nature for all men together, of which sort are the laws concerning the punishments for crimes, these same judicial laws all remain.” (Johann Heinrich Alting, Scriptorum Theologicorum Heidelberensium: Tomus Primus [1646], pg. 112)

“Therefore the judicial laws of Moses according to the substance and scope thereof must be distinguished . . . . . Some of them are laws of particular equity, some of common equity. Laws of particular equity, are such as prescribe justice according to the particular estate and condition of the Jews’ Commonwealth and to the circumstances thereof . . . . . Of this kind was the law, that the brother should raise up seed to his brother, and many such like: and none of them bind us, because they were framed and tempered to a particular people. Judicials of common equity, are such as are made according to the law or instinct of nature common to all men: and these in respect of their substance, bind the consciences not only of the Jews, but also of the Gentiles: for they were not given to the Jews as they were Jews, that is, a people received into the Covenant above all other nations, brought from Egypt to the land of Canaan, . . . but they were given to them as they were mortal men subject to the order and laws of nature as all other nations are.” (William Perkins, A Discourse of Conscience [1596], pg. 17)

A concrete biblical example in the New Testament of the principle of general equity can be seen in the words of the Apostle Paul in 1 Corinthians 9, concerning payments given to the ministers of the Gospel:

“Or is it only Barnabas and I who have no right to refrain from working for a living? 7 Who serves as a soldier at his own expense? Who plants a vineyard without eating any of its fruit? Or who tends a flock without getting some of the milk? 8 Do I say these things on human authority? Does not the Law say the same? 9 For it is written in the Law of Moses, “You shall not muzzle an ox when it treads out the grain.” Is it for oxen that God is concerned? 10 Does he not certainly speak for our sake? It was written for our sake, because the plowman should plow in hope and the thresher thresh in hope of sharing in the crop. 11 If we have sown spiritual things among you, is it too much if we reap material things from you? 12 If others share this rightful claim on you, do not we even more? Do you not know that those who are employed in the temple service get their food from the temple, and those who serve at the altar share in the sacrificial offerings? 14 In the same way, the Lord commanded that those who proclaim the gospel should get their living by the gospel.” (1 Corinthians 9:8-14)

Thus the apostle Paul brings forth a judicial law of Moses, takes the general principle of ethics therein, and applies to ministers under the New Testament as an argument for stipends. Notice verses 9 and 10 - "Is it for oxen that God is concerned? Does he not certainly speak for our sake?". Paul explicitly says that the judicial laws were "written for our sake", and not only for the Jews. However, he is not teaching theonomy (as seen in figures like R.J. Rushdoony, Greg Bahnsen, or Doug Wilson), since he also says that the positive and particular circumstances of the law do not apply ("Is it for oxen that God is concerned?"), but rather the general principle therein.