Jurisdiction

In prior studies, we examined the authority derived from nature and divine law. The next step is to determine who has the legal right to assert and enforce such laws in various contexts. This task is essentially an inquiry into the nature of jurisdiction. In its most general sense, jurisdiction is the power to declare (and by implication, to enforce) the law.

In this study, we will examine the most fundamental jurisdictional distinction of all, being the distinction between divine authority and human authority. The question of who has jurisdiction over any particular matter is essentially a question of authority. That is, the right of jurisdiction exists whenever it has been authorized. Therefore, our inquiry begins with an examination of how authority is acquired, or distributed.

There are three basic issues relating to the origin and nature of all human authority. The first issue is whether human authority is delegated or inherent. That is, to what extent is any human authority to rule over others dependent on a delegation from someone else?

The second issue is whether human authority is limited or absolute. If our authority is inherent, would it be unlimited, and if not, what would it be limited by? On the other hand, if our authority is delegated, could we expect it to be limited by the terms of the delegation? If so, can anyone lawfully do anything except as he is specifically authorized to act?

The third issue is whether human authority is diffuse or concentrated. Has God given everyone the same authority, or has He concentrated rights and powers in the hands of some people to the exclusion of others? How are we to understand the way in which authority is distributed among people?

1.    Read Jer. 18:6-10. In these verses God’s authority over the nations is compared to the authority of a potter over the clay.

1. What does this analogy teach us about the nature of divine authority?
2. What does this analogy teach us about the authority of the potter? What are the implications of this analogy for the law of patents and copyrights (i.e., the creation of inventions and various works)? Who do rights vest in, if not the creator?

2.    Read Gen. 6:13,17; Col. 2:10 and 2 Pet. 3:5-7. Does God’s authority extend even to having the right to destroy His creation? Are there any limits to God’s authority?

3.    Read Rev. 19:15. Has God delegated all authority over creation to mankind, or has He reserved some authority for Himself which has not been delegated? How would you describe what God has reserved?

1. When the Bible is “silent” regarding the authority to act in a particular way, should we presume that authority exists, or that it does not?
2. Compare Gen. 1:29-30 with Gen. 9:2-4. Note that eating meat was neither expressly forbidden nor expressly authorized prior to the flood. Should we presume that people could, or could not, eat meat before the flood? Why?

4.    Read Gen. 4:3-11. Had God expressly forbidden Cain from killing anyone? What presumption, if any, can we make concerning the authority to take another person’s life in the light of God’s “silence”?

1. In the case of Cain, how is this presumption affected by Gen. 9:6 (which was revealed 1600 years later), if at all? In other words, did the law prohibiting murder arise only after the flood and not before? Or, is the law of murder only a divine law and not part of the law of nature?

5.    Read Gen. 1:28. Does this “Dominion Mandate” give anyone authority to rule over other people? Can we presume the existence of any inherent authority to rule others in the absence of an express grant? Is there any human authority which does not ultimately trace back to a grant from God? If so, where would it come from?

6.    Read Deut. 17:9-12. What is God’s attitude towards those who assert the authority, or jurisdiction, to judge their own case? What does this imply regarding whether human authority is delegated or inherent? If a person asserts authority to judge his own case, is that implicitly a claim of inherent or delegated authority?

The contrast between the jurisdiction God has reserved for Himself and the jurisdiction He has delegated to people is often referred to as Morality vs. Law. Thus, the duties we owe to God (which He alone has jurisdiction to enforce) are moral, and the duties we owe to other people (which we may enforce) are legal.

Some traditional hallmarks of moral jurisdiction include freedom of thought (mind), freedom of choice (will), and freedom of religion (heart). Of course, the track record of Anglo-American jurisprudence in this regard has not been consistent. Centuries ago, English law punished imagining the king’s death as a capital offense, and to this day, English law addresses certain religious offenses.

America’s founders rejected constructive treason (imagining the king’s death) as a valid crime. Additionally, religious offenses have largely been eliminated from civil laws via the First Amendment. Yet, modern laws not only permit, but require civil involvement in education. What are the implications for freedom of the mind? Similarly, modern laws punish “hate crimes” specifically. What are the implications for freedom of the heart? Therefore, consider this matter of God’s reserved jurisdiction very carefully.

1.    Read 1 Sam. 16:7; Jer. 17:10; and 2 Chr. 16:9. What is the extent of God’s jurisdiction to examine the heart or mind of any person? To what extent has this same jurisdiction been delegated to people, if at all?

2.    Read Heb. 10:16; Prov. 21:1; and Ex. 14:4,17. To what extent does God’s jurisdiction over the heart and mind include the right to not only know our thoughts, but also to change our thoughts? Can anyone keep a secret from God? Can anyone other than God read our minds?

3.    Read 1 Cor. 2:11; Mat. 7:1-2; and Rom. 14:1,4,10. Do people have the ability to know the heart or mind of others? Have we been given the jurisdiction to know the minds or hearts of others? Does the existence or non-existence of ability imply the existence or non-existence of jurisdiction (authority)?

4.    Read 1 Cor. 4:4-5 and review 1 Cor. 2:11. To what extent does each person have the jurisdiction to judge his or her own heart? Is it as extensive as God’s jurisdiction over our own hearts?

5.    Read Mat. 22:37; Ex. 20:17; Eph. 5:3-5; and Mat. 5:21-22. To what extent is a person’s heavenly citizenship a matter of the heart or mind? Is it within the jurisdiction of the civil law to recognize who is a Christian and who is not? What are the implications regarding the granting of civil exemptions to Christian individuals or groups which are not available to others? Don’t such exemptions require the law to recognize who is a Christian and who is not?

6.    To what extent does anyone have the authority to instruct the heart or mind of another (i.e., to teach)?

1. Read Jn. 18:37 and Mat. 28:19-20. To what extent is “truth” within the jurisdiction of the kingdom of God? Has God delegated the authority to teach to the Church?
2. Read Deut. 6:6-7; and Eph. 6:4. To what extent do families have the jurisdiction to teach?
3. Has God delegated any authority to teach to civil government? Can the Church delegate its teaching authority to civil government? Can families? Is your analysis with respect to churches and families the same, or different, and why?

Another application of the distinction between moral and legal jurisdiction has to do with love, or charity. Even though civil laws are generally restricted to the realm of actions or deeds (as opposed to thoughts), this does not necessarily mean that all actions or deeds fall within the civil jurisdiction. Some actions, such as charitable deeds, have been recognized as being exclusively governed by God.

The quintessential statement of the law of love is to “love your neighbor as yourself.” However, love must come from the heart of a person freely. Once “love” or “charity” can be claimed as a legal right, earned or merited by the recipient, or coerced, it is no longer freely given. And, if it is no longer freely given, how can it be considered “love”? Hence, the historic understanding was that the duty to love one’s neighbor is owed directly to God, and only indirectly to the recipient.

For example, the gleaning laws of the Old Testament commended the Jews to be charitable to their neighbor, but no human sanctions were attached to a failure to do so. Similarly, no individual penalty was prescribed for failing to help a poor man in need, nor for failing to rescue a neighbor’s animal in distress. Insofar as the civil laws were concerned, even in theocratic Israel, these duties were merely moral, not legal (even though they were part of the divine law).

There are a number of matters in which the common law likewise recognized that the law of love had exclusive jurisdiction. For example, the common law historically recognized no duty to rescue a person in distress unless a “special relationship” going beyond mere “neighbor” status had been established between the parties. Similarly, the common law held that an undelivered gift was not enforceable, since an unfulfilled promise to make a gift was bound only by the law of love and therefore legally unenforceable.

1.    Read 1 Tim. 1:5; and 1 Pet. 1:22. To what extent is love a matter of the heart? Does this necessarily mean that actions of love or charity are beyond civil jurisdiction? Is “love” a mere psychological construct, or is it also a concept having legal consequences?

2.    Read Eph. 2:8-9. To what extent is love a matter of grace, not works? Is grace ever earned or merited? Can grace be bought or sold? Is grace always necessarily free, voluntary and discretionary? Can grace ever be compelled? Can one ever have a “right” to receive grace?

3.    Read 2 Cor. 9:7. To what extent does God, in exercising His jurisdiction over the heart, compel people to be charitable or to make gifts? To what extent do people have the jurisdiction to compel charitable acts by others?

4.    Consider whether acts of charity, such as a gift, are among the actions governed exclusively by the law of love.

1. Read Lu. 10:36-37. To what extent are people to meet their neighbor’s need from heartfelt compassion? from a sense of civilly enforced justice?
2. Read Rom. 11:6. Is it accurate to say that a charitable act must be both voluntary and undeserved, or it is not charity at all?
3. Can there be such a thing as compulsory charity, or coerced love? To what extent is public welfare (funded by tax revenues) actually charitable? Are taxes paid voluntarily or under compulsion? Are welfare benefits a right which can be enforced?

As mentioned above, the English common law embraced a variety of criminal offenses against God and religion. Several of these common law offenses appeared in the early statutes of some of the original thirteen American colonies. However, the view which eventually predominated American legal thought rejected the idea that civil government had jurisdiction over matters of religion.

1.    According to the Virginia Bill of Rights, §16: it is the mutual duty of all to practice Christian forbearance, love and charity toward each other.

1. To whom is this “mutual duty” owed? Can it be legally enforced?
2. That same section of the Virginia Bill of Rights also speaks of religion, or the duty which we owe to our Creator. Is religion a duty owed exclusively to God so as to preclude any civil jurisdiction over it?

2.    Read Ja. 1:27. Are charity, love and religion the same with respect to civil jurisdiction? That is, if civil jurisdiction cannot extend to religion, can it extend to charity? Why or why not?

3.    Read Acts 4:18-20 and Acts 5:27-29. To what extent were the early Christians willing to concede that civil rulers had jurisdiction over religious matters?