The Judicial Laws of the Old Testament

How should we use the judicial laws of the Old Testament? What relevance do they have today? The Westminster Confession of Faith contains an excellent, brief paragraph on this question after discussing the moral law and the ceremonial laws given to Israel. 

“To them also, as a body politic, he gave sundry judicial laws, which expired together with the State of that people, not obliging any other, now, further than the general equity thereof may require.” (WCF, 19.4)

Nevertheless, there is still a bit of debate among confessional Presbyterians on the topic, especially with regard to how compatible it is or not with "theonomy." Part of the problem is that there is some diversity among modern theonomists, with some theonomists being more confessional than others. Part of the problem is that the opponents of theonomy sometimes misunderstand theonomy or attack a straw man version. Additionally, part of the problem is that the confession's own statement is not always well understood.

For example, I have heard some people explain the confession's statement by saying that today the judicial laws only have relevance for the church, as the new covenant Israel. But the focus of the confession's "general equity" clause clearly refers to the obligation of states. While Paul does apply judicial laws to the church, this does not mean they no longer apply in some sense to the political sphere.

Nor does it do justice to the confessional position to say that equity (i.e. justice or fairness) has replaced the judicial laws in civil affairs. Rather, the confession teaches that the judicial laws themselves are binding to an extent defined by their connection with general equity.

What does the confession mean by "general equity"? We can start by describing general equity as a quality that some of the judicial laws have. To the extent that they have it, they are universally binding on that basis. The judicial laws are not binding on modern states further than their general equity may require. I hope the following discussion will help explain this concept. 

It is important to note that the reason given in the confession for the expiration of the judicial laws is the expiration of the state of Israel. We cannot go back to the original context of ancient Israel. The reason that these laws have expired is because the original context no longer exists. Thus, to apply these laws today, a person must discern what was grounded in the unique position of ancient Israel and what was grounded in the moral law.

Incidentally, I believe that most theonomists who seek to be confessional are in agreement with the Westminster Confession of Faith. You can see how Greg Bahnsen argued for theonomy's compatibility with confessional and historical Reformed theology in this extended article. Modern-day theonomists would do well to follow his example by drawing from the work done in prior centuries. I do not think Dr. Bahnsen is the final word on the subject. I believe his position can be refined and improved by continued attention to the judicial laws themselves and the work of earlier Reformed writers concerning the application of God's law to society. But I do think his work is quite helpful in critiquing antinomianism, affirming the relevance of God's law to all of life, and calling attention to a certain applicability of the judicial laws.

The Judicial Laws, the 39 Articles, and the Westminster Confession

The Westminster Assembly (1643-1652) addressed the judicial laws of the Old Testament in 19.4 of the Westminster Confession of Faith. To understand its statement, it is helpful to compare it to what the 39 Articles had said previously. The 39 Articles had served as the confession of faith for the Church of England since 1571. In its chapter on the Old Testament, the 39 Articles said, 

“Although the Law given from God by Moses, as touching Ceremonies and Rites, do not bind Christian men, nor the Civil precepts thereof ought of necessity to be received in any commonwealth…”

In their initial revision of the 39 Articles (available in The Minutes and Papers of the Westminster Assembly, 5:326), the Westminster Assembly specified which judicial laws are no longer binding on nations: 

“Although the Law Given from God by Moses, as touching ceremonies and Rites, do not bind Christians, nor the civill precepts given by Moses, such as were peculiarly fitted to the commonwealth of the Jews, are of necessity to be received in any Commonwealth...” (emphasis added)

This helps us understand the distinction made in it the final product of the assembly. In its confession of faith, the Westminster Assembly made the same distinction in a different way, specifying which laws continue to be binding rather than specifying which ones do not. 

“To them also, as a body politic, he gave sundry judicial laws, which expired together with the State of that people, not obliging any other, now, further than the general equity thereof may require.” (WCF 19.4)

This is to say that the judicial laws of the Old Testament are binding on states today as far as they are of general equity, not peculiarly fitted to Israel, a distinction that was commonly made at the time.

For example, Johannes Piscator’s appendix to his commentary on Exodus was quoted favorably in the writings of men at the Westminster Assembly (George Gillespie, Francis Cheynell, and Samuel Rutherford). In that appendix, Johannes Piscator (1546—1625) argued that

“the magistrate is obliged to those judicial laws which teach concerning matters which are immutable and universally applicable to all nations, but not to those which teach concerning matters which are mutable and peculiar to the Jewish or Israelite nations for the times when those governments remained in existence.” (Disputations on the Judicial Laws of Moses, Braselton, GA: American Vision, 2015 [1605], 4-5)

While a member of the Westminster Assembly, Samuel Bolton published The True Bounds of Christian Freedom (1645). In this book, he said “in respect of the ceremonial and the judicial law we find few dissenters.” Here is how he explained this common view of the judicial law:

“As for the judicial law, which was an appendix to the second table, it was an ordinance containing precepts concerning the government of the people in things civil, and it served three purposes: it gave the people a rule of common and public equity, it distinguished them from other peoples, and it gave them a type of the government of Christ. That part of the judicial law which was typical of Christ's government has ceased, but that part which is of common and general equity remains still in force. It is a common maxim: those judgements which are common and natural are moral and perpetual.” (Carlisle, PA: Banner of Truth, 1964 [1645], 56)

This concept and terminology was also found at this time on the other side of the Atlantic. Thomas Shepherd, minister in Massachusetts, cited and affirmed Piscator’s view in thesis 42 of his Theses Sabbaticæ, or, The doctrine of the Sabbath, saying “The learned generally doubt not to affirme, that Moses judicials binde all nations, so farre forth as they containe any morall equity in them...” The New Haven Colony affirmed in 1642,

“that the judicial law of God given by Moses and expounded in other parts of scripture, so far as it is a hedge and a fence to the moral law, and neither ceremonial nor typical nor had any reference to Canaan, hath an everlasting equity in it, and should be the rule of their proceedings.” (Charles Hoadly, ed. Records of the Colony and Plantation of New Haven from 1638 to 1649, Hartford: for the Editor, 1857, 69)

Two Kinds of Judicial Laws in the Old Testament

So regarding the judicial laws, Reformed theologians have distinguished between laws peculiarly fitted to Israel and laws on things common to all nations. They taught that the first category, while instructive in various ways, is not binding on the nations, but that the second category, resting on general equity, does bind them. While there is some room for debate on what was peculiarly fitted to the commonwealth of Israel, here are a few examples of how 16th-17th century Reformed theologians described this distinction.

Johannes Piscator, Disputations on the Judicial Laws of Moses (2015 [1605]):

“Things common to all nations (that is, which befall all) and are immutable with respect to their own nature and merits are moral offenses, that is, against the Decalogue, such as murder, adultery, theft, seduction from the true God, blasphemy, and smiting of parents.

“Those laws which are mutable and which were peculiar to the Jews for that time are things such as the emancipation of Hebrew slaves in the seventh year, Levirate marriage, releasing of debts in the appointed year, marriage with a woman from one’s own tribe, and if there were any other of the same sort.”

Henrici Alting, Scriptorum theologicorum Heidelbergensium (1646):

“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 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.”

William Gouge, A commentary on the whole Epistle to the Hebrews (1655):

“Many branches of that law appertained to the Jewish priesthood; as, the particular laws about the cities of refuge, whither such as slew any unawares fled, and there abode till the death of the high priest. Num. xxxv. 25. And laws about lepers, which the priest was to judge. Lev. xiv. 3. And sundry other cases which the priest was to judge of, Deut. xvii. 9. So also the laws of distinguishing tribes. Num. xxxvi. 7 ; of reserving inheritances to special tribes and families, of selling them to the next of kin, Ruth iv. 4 ; of raising seed to a brother that died without issue. Gen. xxxviii. 8, 9 ; of all manner of freedoms at the year of jubilee, Lev. XXV. 13, &c.

“There were other branches of the judicial law which rested upon common equity and were means of keeping the moral law: as putting to death idolaters and such as enticed others thereunto; and witches, and wilful murderers, and other notorious malefactors. So likewise laws against incest and incestuous marriages; laws of reverencing and obeying superiors and governors; and of dealing justly in borrowing, restoring, buying, selling, and all manner of contracts, Exod. xxii. 20 ; Deut. xiii. 9; Exod. xx. 18 ; Num. xxxv. 30; Lev. xx. 11, &c., xix. 32, 35.”

Applying the Judicial Laws with Wisdom

Like any nation, Israel needed a law to guide the state in its normal role in administrating justice. It is right after Moses appoints judges for Israel in Exodus 18 that Israel is given judicial laws in Exodus 21-23. These judges were not prophets like Moses. They needed God's word to direct them in their task. God gave Israel laws, which if they were observed, would make that nation a model of justice and righteousness (Deut. 4:5-8). As Moses said, "And what great nation is there, that has statutes and rules so righteous as all this law that I set before you today?" (Deut. 4:8). In this respect, their God-given laws were a model to all the nations. As they pertain to matters which are immutable and universally applicable to all nations and rest upon general equity, they remain in force. But it should also be noted that there are two sources of discontinuity in modern application:

First, there are redemptive-historical differences between Israel and modern nations. Israel held a unique position as the entire covenant people and the kingdom of God with typological significance. Its land held special significance as the promised land. Judicial laws that depended upon the Levitical priesthood cannot be replicated as they were originally instituted. The test for adultery in Numbers 5 is only designed for the old covenant system. Other examples include laws regarding tribal inheritance, the sabbath year and year of jubilee, the particular regulations for the cities of refuge, and the laws regarding the inheritance of the Levites. Other laws might be a mix, partly reflecting Israel's unique position and modified or intensified accordingly.

Even the laws adapted to Israel's unique position are still instructive, even though they are abrogated. For example, the laws regarding the inheritance of the Levites teach the principle that they who proclaim God’s word should be maintained (1 Cor. 9:13-14). The laws regarding the cities of refuge teach us to distinguish between murder and manslaughter as well as to seek due process and adjudication.

Second, there are other situational differences such as technological differences, cultural contexts, and aggravating or mitigating circumstances. Even in the Old Testament, wisdom was needed how to apply case laws to particular situations as new situations arose or old situations changed. For example, consider the culturally specific setting of the parapet law (Deut. 22:8). It assumes the use of the roof as a living space, but the principle continues to apply even when the precise application becomes obsolete. When Paul concluded from the law against muzzling the ox while it tread out the grain the principle that the laborer deserves his wages (1 Cor. 9:8-10, 1 Tim. 5:18), there was nothing unique to the new covenant about this observation - those under the old covenant should have made the same deduction. Even in the Old Testament, some cases required a determination on the part of the judge how many lashes were to be given in proportion to an offense up to forty (Deut. 25:1-3, cp. Luke 12:47-48). A ransom payment was sometimes accepted instead of the death penalty, although not in the case of murder (Ex. 21:30-32, Num. 35:31-32). Ezekiel 18 and 1 Kings 1-2 seem to indicate that mercy could be shown in some cases toward the repentant, though not toward the incorrigible. I think that some people who object to any binding relevance of the judicial laws today operate on a misunderstanding of what the judicial laws required of Israel and would require of us.

Rulers of every commonwealth have a God-given responsibility to carry out God’s wrath on the wrongdoer; to maintain piety, justice, and peace in their realm; to punish those who do evil and to praise those who do good (Rom. 13:4, 1 Peter 2:13-14, 2 Tim. 2:2, WCF 23.1-2). The civil government has some flexibility to make laws fitting for its situation and to apply them justly as fits the situation, but it is obligated to make such laws in accordance with the moral law of God and with the judicial laws given by him, insofar as they are of general equity. That is, modern states should maintain justice in accord with God’s moral law, and they should model their laws after the judicial laws of of the Old Testament as an infallible example of God’s moral law applied in a given society, with appropriate adaptation to their circumstances.

And while only the civil magistrate has the power of the sword, all of society should find direction in the judicial laws, since they teach the application of the moral law to life. Business, families, and individuals should learn from them to be honest, just, and righteous. You should study these laws, heed their principles, and walk accordingly. Observe God’s displeasure with those sins in the prescribed punishments. And remember that as civil laws, they often express a minimal standard (e.g. do not kill your neighbor), not the full ideal (e.g. love your neighbor as yourself). Likewise, remember they often teach principles through case laws that give direction for what to do in a given case - as if the case already exists and is bring brought before a judge to adjudicate - and so the law does not necessarily approve or permit everything in the situation (e.g. when it gives directions for dividing an inheritance in a polygamous family, it is not approving of polygamy).

The church must also wisely apply God’s law, including the judicial laws, in line with what we have said. It applies them in its own way, with spiritual discipline, not civil punishments. But like Israel of old, the church is told to “purge the evil person from among you” (1 Cor. 5:13). Like Israel of old, the church is told to establish every charge “by the evidence of two or three witnesses” (Matt. 18:16). The church should also proclaim the substance of typical ordinances, for example, proclaiming the spiritual jubilee in Christ.