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Legal Foundations: The Framework of Law
by Gerald R. Thompson
Previous: Equity Jurisprudence
IMPORTANCE OF COVENANTS
In prior chapters reference was made to the law of God revealed in verbal form in the Bible, variously called divine law, divine volitional law, revealed law, or the law of nature’s God. The purpose of this chapter is to begin to examine the substantive content of this law. The divine law is revealed in the form of several covenants between God and people, the nature and content of which are described below.
Revelation of divine law. The divine covenants express the divine law, that is, the law of God revealed in verbal form. There are no laws of the Creator except those expressed in the law of nature and the various divine covenants revealed in the Bible. The divine covenants, therefore, are an extremely important component of the law of God.
Means of delegating authority. The divine covenants are the means by which God has delegated authority to people. That is, to the extent people have the authority to rule over others, that authority is primarily to be determined from a study of the covenants. This topic will be expanded in the succeeding chapters. These delegations of authority are covenant specific, that is, the delegations apply only to those governed by the covenant. Thus, one of the key issues is to determine, as a matter of law, to whom each covenant applies.
Necessity to rule by covenant. As we have seen already, God has an absolute right to rule over people. This authority belongs to God as the uncreated Creator of everything, and everyone, that exists. God created every individual person and every nation on the earth. As a result, God has the right to exercise any means whatsoever to effect His governance. As it turns out, however, God has chosen to rule people by covenant.
Humanity, on the other hand, has no choice but to exercise rule by covenant. This is because no human is the creator of another human. Human reproduction, or procreation, does not vest parents with “creator authority” over their children the same way God has absolute authority over us. Further, no person has authority over another person as part of his or her inherent nature. That is, all people are created equal before the law. No one has the right to rule over another person solely by virtue of being born. Similarly, no one has the right to rule over another in a civil, corporate or ecclesiastical context without their consent. Since people receive all ruling authority from God, this is the exclusive means by which people can obtain authority to rule over others. Consequently, human covenants are not merely a convenient, but an absolutely necessary means for anyone to legitimately rule over another person.
Thus, the biblical covenants serve as the pattern for the way people are to rule over others. The most foundational human covenants from a legal perspective are the marriage covenant and the civil covenant, since they form the basis of family law and constitutional law. These are topics which will be developed in separate volumes in greater detail. However, there are a number of other important applications of the covenant principles which will be treated here.
LEGAL ELEMENTS OF COVENANTS
Even though covenants are not a part of the law of nature, the law of nature nonetheless speaks to the issue of how a covenant is defined. That is, there is a law of the nature of covenants, which specifies the elements of a valid covenant and gives a covenant its binding effect. These legal elements are inferred via inductive reasoning after examining all of the examples of covenantal relations in the Bible. The divine covenants in particular have a number of other qualities about them which are not discussed here. These covenantal qualities are not omitted because they are unimportant in any larger sense, but because they have little or no practical application to jurisprudence. Accordingly, only those covenantal elements of jurisprudential significance are examined here.
The legal elements of covenants are as follows:
Justification of Authority. The law of nature requires that the authority to rule be justified. God, in His mercy, has seen fit to justify even His own authority to rule mankind, though He did not need to. For human covenants, the right to rule must be authorized by God to be lawful. This is because no human has created any other human and has no inherent authority to rule another person.
Mutual Assent. A covenant is an agreement where two or more persons each consent to be bound by certain terms and conditions. God has created mankind so that people have a choice whether to respond to God or to rebel against Him. God offers His covenants to people in such a way that each person may accept or reject the proposed relationship. Thus, no one has the right to agree to a covenant on behalf of someone else then living without their individual consent. As God’s covenant relationships with mankind are not coerced, so people become bound by a covenant with each other only when they have consented.
New Relationship. Every covenant puts the parties in a new form of relationship, or community, with respect to each other. In the case of covenant relationships between God and mankind, an intimate fellowship is formed. A covenant between people also creates a new legal relationship, or community, which did not previously exist.
Irrevocably Binding. A covenant is irrevocable. In other words, the parties cannot change their minds about the agreement once they have made it, except to the extent limited modifications may be made. Because God is the God of eternal covenant faithfulness, all covenants between God and mankind can never be revoked. This same principle applies to human covenants. Unlike an ordinary contract, people cannot revoke a covenant, either by unilateral repudiation or by mutual agreement to do so.
Limited Modifiability. A covenant, even a divine covenant, can be modified by the parties, but only for the purpose of better securing the goals of the original agreement. Thus, it is the purposes or goals of a covenant which are perpetual, and only the means of carrying out those purposes which may be modified. Any modification of a covenant is limited to the means employed to carry out the covenantal purposes. The modification of human covenants is similarly limited to changing the means, not the purposes, of the covenant. Further, any such amendment must be done in accordance with the procedural provisions of the covenant itself.
Binding on Descendants. A covenant may also be perpetual in the sense that it is fully binding on the descendants of the parties. This is the only way a covenant can last beyond the lives of the parties. God’s covenants with mankind have usually been made with people acting in a representative capacity. Thus, God’s covenants bind and benefit all future generations of humanity within the scope of that capacity. It is sometimes possible for people to covenant so as to bind future generations to the covenant as though they were parties themselves.
Framework for Enforcement. God has chosen the covenant as the framework within which to administer His law and to rule over mankind. People have no choice but to use a covenant framework to rule over others, so a covenant is the framework for administering human relations as well.
These seven legal elements of covenants will be examined, in this same sequence, with respect to each of the particular covenants discussed below.
THE DIVINE COVENANTS
The divine covenants are covenants between God and people, that is, covenants to which God is actually a party. Because of the need for objective verification whenever people claim to have made a covenant with God which grants them rights or authorizes them to rule over others, the divine covenants are limited to those which are verbally revealed in the Bible.
There are six divine covenants in the Bible: the covenants made with Adam and Eve, Noah and his family, Abraham, the nation of Israel, David, and the Church through Jesus Christ. Some of these covenants, such as the Abrahamic and Israelite covenants, were repeated, supplemented, ratified or confirmed on several occasions rather than agreed to all at once. However, for the present purposes, all covenantal dealings between God and the same group of people will be treated as a single covenant.
In studying the biblical covenants, particular attention must be paid to the express terms of each covenant, for the general consideration of “no implied authority” will apply. That is, the covenant texts limit the grants of authority conferred to the parties. The presumption will be that authority not expressly granted cannot be inferred, and therefore, cannot be exercised.
Adamic (Creation) Covenant.
Although the word “covenant” is not expressly used in connection with Adam and Eve, an examination of the express covenants in the Bible indicates that the elements of a covenant were also present in God’s relationship with Adam and Eve. This covenant relationship may also be inferred from either Hos. 6:7 (“like Adam they have transgressed the covenant”), or the express covenant with “day and night” mentioned in Jer. 33:20-25. Coincidentally, the Noahic covenant (an express covenant relation) was referred to as a covenant between God and the earth in Gen. 9:13. Thus, it is possible that God’s covenant with “day and night” (a covenant relating to the time of creation in Genesis 1-2) is actually a reference to a covenant with Adam and Eve.
God did not justify His rule of man by His mercy, power or knowledge, but solely by the fact that He is the “uncreated Creator.”
- And God created man in His own image, in the image of God He created him; male and female He created them. [Gen. 1:27.]
- [W]ho are you, O man, who answers back to God? The thing molded will not say to the molder, “Why did you make me like this,” will it? Or does not the potter have a right over the clay . . .? [Rom 9:20-21.]
God told Adam and Eve not to eat of the tree of the knowledge of good and evil in order to demonstrate that His relationship with them required each to make a conscious choice.
- And the Lord God commanded the man, saying, “From any tree of the garden you may eat freely; but from the tree of the knowledge of good and evil you shall not eat, for in the day that you eat from it you shall surely die.” [Gen. 2:16-17.]
Adam and Eve were empowered to act as God’s vice-regents in ruling over the earth.
- And God blessed them; and God said to them, “Be fruitful and multiply, and fill the earth, and subdue it; and rule over the fish of the sea and over the birds of the sky, and over every living thing that moves on the earth.” [Gen. 1:28.]
Adam and Eve’s failure to abide by the terms of their covenant with respect to the tree of the knowledge of good and evil required God to enforce His covenant with them, but did not revoke the covenant. People must still choose responsibly before God, and the dominion mandate [Gen. 1:28] has never been repealed. [See, Gen. 9:1,7; 35:11; Lev. 26:9; Jer. 23:3.] Adam and Eve, as well as their children, continued to exercise dominion authority even after the Fall.
- Now the man had relations with his wife Eve, and she conceived and gave birth to Cain, and she said, “I have gotten a manchild with the help of the Lord.” And again, she gave birth to his brother Abel. And Abel was a keeper of flocks, but Cain was a tiller of the ground. [Gen. 4:1-2.]
The curse of the ground modified the means, but did not alter the purpose, of man’s dominion authority.
- Then to Adam He said, “Because you have listened to the voice of your wife, and have eaten from the tree about which I commanded you, saying, `You shall not eat from it’; Cursed is the ground because of you; In toil you shall eat of it All the days of your life. Both thorns and thistles it shall grow for you; And you shall eat the plants of the field; By the sweat of your face You shall eat bread, Till you return to the ground, Because from it you were taken; For you are dust, And to dust you shall return.” [Gen 3:17-19.]
The Adamic covenant applies to all descendants of Adam and Eve by implication. Otherwise, people today could not claim to be made in the image of God, nor to exercise dominion authority. In addition, since the curse of the ground expressly applies to all descendants of Adam, the terms of the original covenant (as modified) must also apply.
- Therefore, just as through one man sin entered into the world, and death through sin, and so death spread to all men . . . So then as through one transgression there resulted condemnation to all men . . .. [Rom. 5:12,18.]
This covenant continues to administer the law of individual moral responsibility and individual and family dominion. Jesus implicitly recognized that God’s intentions for Adam and Eve’s descendants have remained unchanged.
- And He answered and said, “Have you not read, that He who created them from the beginning made them male and female?” [Mat. 19:4.]
The covenant with Noah and his family expressly uses the word “covenant” to describe God’s relationship with them after the worldwide flood.
Since God created all things, including man, His authority includes the right to destroy His creation, and to covenant with those whom He spared from destruction.
- Then God said to Noah, “The end of all flesh has come before Me; for the earth is filled with violence because of them; and behold, I am about to destroy them with the earth. . . . But I will establish My covenant with you; and you shall enter the ark – you and your sons and your wife, and your sons’ wives with you.” [Gen. 6:13,18.]
God would not have covenanted with Noah unless Noah had first built the ark and carried out God’s commands with respect to the use of that ark, evidencing Noah’s assent.
- “Make for yourself an ark of gopher wood . . ..” Thus Noah did; according to all that God had commanded him, so he did. [Gen. 6:14,22.]
Immediately after the flood, God had fellowship with no one other than Noah and his family. In this context, God reaffirmed the dominion mandate and that Noah and his descendants should continue to rule over and subdue the earth as God’s vice-regents.
- And God blessed Noah and his sons and said to them, “Be fruitful and multiply, and fill the earth. . . . And as for you, be fruitful and multiply; Populate the earth abundantly and multiply in it. . . . Now behold, I Myself do establish My covenant with you, and with your descendants after you.” [Gen. 9:1,7,9.]
The irrevocability of this covenant is evidenced by the sign of the rainbow and the fact that God would never flood the entire earth with water again.
- “[A]nd I will remember My covenant, which is between Me and you and every living creature of all flesh; and never again shall the water become a flood to destroy all flesh. When the bow is in the cloud, then I will look upon it, to remember the everlasting covenant between God and every living creature of all flesh that is on the earth.” [Gen. 9:15-16.]
God’s original provision for man’s food was that he should eat only vegetation. [See, Gen. 1:29.] However, this was modified and extended to include the eating of meat when the dominion mandate was restated. Thus, the purposes of the dominion mandate did not change, but the means of accomplishing dominion were modified.
- “And the fear of you and the terror of you shall be on every beast of the earth and on every bird of the sky; with everything that creeps on the ground, and all the fish of the sea, into your hand they are given. Every moving thing that is alive shall be food for you; I give all to you, as I gave the green plant.” [Gen. 9:2-3.]
This covenant applies to the descendants of Noah for all successive generations, and even to the descendants of the animals as well.
- “Now behold, I Myself do establish My covenant with you, and with your descendants after you; and with every living creature that is with you, the birds, the cattle, and every beast of the earth with you; of all that comes out of the ark, even every beast of the earth. . . . This is the sign of the covenant which I am making between Me and you and every living creature that is with you, for all successive generations.” [Gen. 9:9-10,12.]
This covenant continues to administer the laws of food, capital punishment, individual and family dominion, as well as the promise of the rainbow.
- “For this is like the days of Noah to me; When I swore that the waters of Noah Should not flood the earth again.” [Isa. 54:9.]
God’s covenant with Abraham established faith as the key to redemption from sin and death.
Because God created all men, He can select an individual with whom to make a covenant to benefit all men.
- “And I will make you a great nation, And I will bless you, And make your name great; And so you shall be a blessing; And I will bless those who bless you, And the one who curses you I will curse. And in you all the families of the earth shall be blessed.” [Gen. 12:2-3.]
God’s covenant relationship with Abraham was conditioned on Abraham’s obedience in leaving Ur and in observing the ritual of circumcision, which showed Abraham’s assent.
- Now the Lord said to Abram, “Go forth from your country, and from your relatives and from your father’s house, to the land which I will show you . . ..” So Abram went forth as the Lord had spoken to him. [Gen. 12:1,4.] “This is My covenant, which you shall keep . . .: every male among you shall be circumcised. . . .” Then Abraham took . . . every male among the men of Abraham’s household, and circumcised the flesh of their foreskin in the very same day, as God had said to him. [Gen. 17:10,23.]
God blessed Abraham as the “father of the faithful” and established faith as the key to a new relationship of close communion with God.
- Then he believed in the Lord; and He reckoned it to him as righteousness. [Gen. 15:6.] Therefore, be sure that it is those who are of faith who are sons of Abraham. And the Scripture, foreseeing that God would justify the Gentiles by faith, preached the gospel beforehand to Abraham, saying, “All the nations shall be blessed in you.” So then those who are of faith are blessed with Abraham, the believer. [Gal. 3:7-9.]
The covenant with Abraham is everlasting.
- “And I will establish My covenant between Me and you . . . for an everlasting covenant.” [Gen. 17:7.]
God’s promise to “be God to you and your descendants after you” through the means of circumcision was modified to include Abraham’s “spiritual descendants,” that is, people who have shared in the circumcision of the heart. [See, Gal. 3:7-9.] However, the purpose of the covenant remained the same, namely, for God to have a people unto Himself. Thus, only the means of the covenant, not its purpose, was modified.
- For he is not a Jew who is one outwardly; neither is circumcision that which is outward in the flesh. But he is a Jew who is one inwardly; and circumcision is that which is of the heart, by the Spirit, not by the letter; and his praise is not from men, but from God. [Rom. 2:28-29.]
Abraham’s covenant applied to his physical descendants, specifically as confirmed through Isaac and Jacob.
- “I will . . . be God to you and to your descendants after you. And I will give to you and your descendants after you . . . all the land of Canaan, for an everlasting possession.” [Gen. 17:7-8.]
This covenant continues to administer the law of righteousness through faith and rights to the Promised Land.
- “And I will give to you and to your descendants after you, the land of your sojournings, all the land of Canaan, for an everlasting possession; and I will be their God.” [Gen. 17:8.]
Israel’s (Mosaic) covenant.
Because God created all nations, He can select a people with whom to make a unique covenant as an example to all other nations.
“For you are a people holy to the Lord your God. The Lord your God has chosen you to be a people for his treasured possession, out of all the peoples who are on the face of the earth. … Know therefore that the Lord your God is God, the faithful God who keeps covenant and steadfast love with those who love him and keep his commandments, to a thousand generations ….” [Dt. 7:6, 9.]
The people of Israel were not coerced into accepting God’s covenant with them, but assented to it voluntarily.
- Then Moses came and recounted to the people all the words of the Lord and all the ordinances; and all the people answered with one voice, and said, “All the words which the Lord has spoken we will do!” . . . So Moses took the blood and sprinkled it on the people, and said, “Behold the blood of the covenant, which the Lord has made with you in accordance with all these words.” [Ex. 24:3,8.]
Israel was intended to become a kingdom of priests, a holy nation, and “My own possession among all the peoples” of the earth. This was the new relationship God desired for that nation.
- “Now then, if you will indeed obey My voice and keep My covenant, then you shall be My own possession among all the peoples, for all the earth is Mine; and you shall be to Me a kingdom of priests and a holy nation.” [Ex. 19:5-6.]
The covenant with Israel is irrevocable, notwithstanding the advent of the new covenant in Christ Jesus.
- He has remembered His covenant forever, The word which He commanded to a thousand generations, The covenant which He made with Abraham, And His oath to Isaac. Then He confirmed it to Jacob for a statute, To Israel as an everlasting covenant. [Ps. 105:8-10.] “For truly I say to you, until heaven and earth pass away, not the smallest letter or stroke shall pass away from the Law, until all is accomplished.” [Mat. 5:18.]
The scripture anticipates that the Mosaic covenant will one day be modified. I do not say that it has been modified yet. True, parts of it are suspended until such time as Christ returns to sit on the throne of David and the Jewish temple is rebuilt. But the purposes and terms of the Mosaic covenant have not changed since they were first given, almost 3,500 years ago. When the change does come, it will be by the inauguration of the New Covenant with Israel (Jer. 31:31-34).
For if that first covenant had been faultless, there would have been no occasion to look for a second. … In speaking of a new covenant, he makes the first one obsolete. And what is becoming obsolete and growing old is ready to vanish away. [Heb 8:7, 13.]
God’s laws, which applied to Israel “throughout their generations,” imply not only irrevocability, but binding effect on descendants.
- “But as for you, speak to the sons of Israel, saying, `You shall surely observe My sabbaths; for this is a sign between Me and you throughout your generations, that you may know that I am the Lord who sanctifies you.’. . . So the sons of Israel shall observe the sabbath, to celebrate the sabbath throughout their generations as a perpetual covenant.” [Ex. 31:16.]
This covenant still administers God’s plan for the nation of Israel and the Promised Land.
- “Remember Abraham, Isaac, and Israel, Thy servants to whom Thou didst swear by Thyself, and didst say to them, `I will multiply your descendants as the stars of the heavens, and all this land of which I have spoken I will give to your descendants, and they shall inherit it forever.'” [Ex. 32:13.]
Although the word “covenant” is not expressly used in 2 Sam. 7:1-29, God’s promise to keep the throne of Israel among David’s descendants is referred to as a covenant in 2 Chr. 13:5; 21:7; Ps. 89:3-4; and Jer. 33:20-21.
Because God is sovereign over Israel, He has the right to choose who will rule as king.
- “Thus says the Lord of Hosts, `I took you from the pasture, from following sheep, that you should be ruler over My people Israel.'” [2 Sam. 7:8.]
David assented to the covenant in a prayer to God in 2 Sam. 7:18-29.
- “Now therefore, O Lord God, the word that Thou hast spoken concerning Thy servant and his house, confirm it forever, and do as Thou hast spoken.” [2 Sam. 7:25.]
God promised to be a father to David’s sons in a new fellowship and communion.
- “I will be a father to him and he will be a son to Me; . . . but My lovingkindness shall not depart from him, as I took it away from Saul.” 2 Sam. 7:14-15.]
The covenant with David is irrevocable.
- “And your house and your kingdom shall endure before Me forever; your throne shall be established forever.” [2 Sam. 7:16.]
The Davidic covenant was modified to the extent it was ultimately fulfilled by Jesus Christ (a descendant of David).
- “[Y]ou shall name Him Jesus . . . and the Lord God will give Him the throne of his father David; and He will reign over the house of Jacob forever; and His kingdom will have no end.” [Lu. 1:31-33.]
The covenant with David applied to his descendants.
- “I have made a covenant with My chosen; I have sworn to David My servant, I will establish your seed forever, And build up your throne to all generations.” [Ps. 89:3-4.]
David’s covenant continues to administer the law of the right to rule as king over Israel.
- “I, Jesus . . . am the root and the offspring of David . . ..” [Rev. 22:16.]
Since God created all men, He can extend the covenant with Abraham to all those who believe on Him.
- Therefore, be sure that it is those who are of faith who are sons of Abraham. And the Scripture, foreseeing that God would justify the Gentiles by faith, preached the gospel beforehand to Abraham, saying, “All the nations shall be blessed in you.” So then those who are of faith are blessed with Abraham, the believer. [Gal. 3:7-9.]
The Church covenant applies to those who choose to believe in faith.
- “He who believes in Him is not judged; he who does not believe has been judged already, because he has not believed in the name of the only begotten Son of God.” [John 3:18.] “Whoever will call upon the name of the Lord will be saved.” [Rom. 10:13.]
Upon entering into the new covenant relationship, a Christian becomes a member of the universal Church, having fellowship with God and other believers.
- Therefore, my brethren, you also were made to die to the Law through the body of Christ, that you might be joined to another, to Him who was raised from the dead, that we might bear fruit for God. [Rom. 7:4.] Now you are Christ’s body, and individually members of it. [1 Cor. 12:27.]
The Church covenant will never end.
- For I am convinced that neither death, nor life, nor angels, nor principalities, nor things present, nor things to come, nor powers, nor height, nor depth, nor any other created thing, shall be able to separate us from the love of God, which is in Christ Jesus our Lord. [Rom. 8:38-39.]
Because the new covenant is perfect (i.e., complete), it is not modifiable at all. That is, this covenant is the ultimate redemptive covenant – perfect in purpose and in means.
- For by one offering He has perfected for all time those who are sanctified. [Heb. 10:14.]
This covenant is unique in that parties do not covenant in a representative capacity. Each individual must freely choose to come to God on his own.
- But as many as received Him, to them He gave the right to become children of God, even to those who believe in His name. [John 1:12.]
This covenant continues to administer the redemption from sin for all people, as well as the authority of the church in the world.
- And Jesus came up and spoke to them, saying, “All authority has been given to Me in heaven and on earth. Go therefore and make disciples of all the nations, baptizing them in the name of the Father and the Son and the Holy Spirit, teaching them to observe all that I commanded you.” [Mat. 28:18-20.]
Since man is made in the image of God, we are to relate to each other according to the pattern of the way God relates to us. And as shown earlier, people have no choice but to exercise rule over one another by way of a covenant.
Human covenants may take many forms, such as “covenants running with the land” recognized in property law. Joshua made a covenant with the Gibeonites in Josh. 9:15, a model for modern international treaties. Among the human covenants, however, two stand out as ordained of God for the ordering and preservation of society, namely, the family (or marriage) covenant and the civil covenant (or constitution). For this reason, the historic understanding of these two relationships will be examined together with relevant scriptures.
Family (or marriage) covenant.
The marital covenant is a legal relationship which has been “instituted” by God. Of all the human relations, marriage is the most foundational to the well-being of society.
A man and woman have authority to marry because God created mankind male and female, and intended for them to relate to each other in this way.
- And God created man in His own image, in the image of God He created him; male and female He created them. [Gen. 1:27.] Then the Lord God said, “It is not good for the man to be alone; I will make him a helper suitable for him.” [Gen. 2:18.]
- By statutes . . . it is declared, that all persons may lawfully marry, but such as are prohibited by God’s law. [Blackstone, 1 Commentaries *435.]
An essential ingredient to any valid marriage is the consent of both parties.
- Then they called Rebekah and said to her, “Will you go with this man?” And she said, “I will go.” . . . Then Isaac brought her into his mother Sarah’s tent, and he took Rebekah, and she became his wife. [Gen. 24:58,67.]
- [T]he law treats [marriage] as it does all other contracts: allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract. . . in contracts the obligation must be mutual; both must be bound, or neither. [Blackstone, 1 Commentaries *433, 436.]
- No peculiar ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required; and as marriage is said to be a contract jure gentium, that consent is all that is required by natural or public law . . .. [Kent, Commentaries.]
Upon marrying, the husband and wife become “one flesh,” which is a new legal relationship. Each marriage covenant also creates a new family, which is the community formed as a result of the covenant.
- For this cause a man shall leave his father and his mother, and shall cleave to his wife; and they shall become one flesh. [Gen. 2:24.] “Consequently they are no more two, but one flesh. What therefore God has joined together, let no man separate.” [Mat. 19:6.]
- By the contract [of marriage] thus entered into, a society is formed, of a most interesting and important character, which is the origin of all civil society; and in which, children are prepared to become members of that great community. [Francis Wayland, The Elements of Moral Science, 1840 (1963) at 279.]
The marriage covenant is irrevocable in the sense that it binds husband and wife until one or the other dies.
- Or do you not know, brethren (for I am speaking to those who know the law), that the law has jurisdiction over a person as long as he lives? For the married woman is bound by law to her husband while he is living; but if her husband dies, she is released from the law concerning the husband. So then if, while her husband is living, she is joined to another man, she shall be called an adulteress; but if her husband dies, she is free from the law, so that she is not an adulteress, though she is joined to another man. [Rom. 7:1-3.]
- [A]ll marriages contracted by lawful persons in the face of the church, and consummate with bodily knowledge, and fruit of children, shall be indissoluble. [Blackstone, 1 Commentaries *435.]
- When a marriage is duly made, it becomes of perpetual obligation, and cannot be renounced at the pleasure of either or both of the parties. It continues, until dissolved by the death of one of the parties, or by divorce. [Kent, Commentaries.]
Because of the “hardness of man’s heart,” God allowed for divorce to modify the marriage covenant between a husband and wife, although God did not abrogate the law of marriage in doing so.
- “When a man takes a wife and marries her, and it happens that she finds no favor in his eyes because he has found some indecency in her, and he writes her a certificate of divorce and puts it in her hand and sends her out from his house . . ..” [Deut. 24:1.] He said to them, “Because of your hardness of heart, Moses permitted you to divorce your wives; but from the beginning it has not been this way.” [Mat. 19:8.] But to the married I give instructions, not I, but the Lord, that the wife should not leave her husband . . . and that the husband should not send his wife away. [1 Cor. 7:10-11.]
- [W]hen the marriage is just and lawful ab initio . . . the law is tender of dissolving it . . .. For the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any case whatsoever, that arises after the union is made. [Blackstone, 1 Commentaries *440-441.]
In this case, it is the form of covenant which is binding on all descendants of Adam and Eve. That is, husbands and wives are not free to set the terms of their relationship because God has defined the terms and conditions of the institution of marriage. Further, in a civil setting, the children cannot undo the marriage of their parents.
- Let the husband fulfill his duty to his wife, and likewise also the wife to her husband. The wife does not have authority over her own body, but the husband does; and likewise also the husband does not have authority over his own body, but the wife does. [1 Cor. 7:3-4.]
- [Marriages] voidable only by sentence of separation . . . are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not suffer the spiritual court to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties. [Blackstone, 1 Commentaries *434.]
The family covenant continues to administer the law of family dominion and the law of love among all family members.
- Nevertheless let each individual among you also love his own wife even as himself; and let the wife see to it that she respect her own husband. [Eph. 5:33.]
- [M]arriage, being an institution of God, is subject to his laws alone, and not to the laws of man. [Wayland, Moral Science at 279.]
The civil covenant, or constitution, is also ordained by God for human society, but in a different fashion from that of the family covenant. Whereas the form of marriage is prescribed by the Creator, the form of a civil government is not. What is prescribed is that people, to exercise civil rulership over each other, must do so by the consent of the governed, that is, by a civil covenant. The people have liberty to choose the form of civil government that seems best to them in accordance with God’s law.
All lawful civil rule is constituted by the consent of the governed and is constrained by the laws of civil authority established by God.
- And He said to them, “Then render to Caesar the things that are Caesar’s, and to God the things that are God’s.” [Lu. 20:25.] Let every person be in subjection to the governing authorities. For there is no authority except from God, and those which exist are established by God. [Rom. 13:1.]
- The government proceeds directly from the people; is “ordained and established,” in the name of the people; and . . . the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. [McCulloch v. Maryland, 17 U.S. 316 (1819), at 403.]
A civil covenant, to be effective, requires the assent (or ratification) of the people who are to be governed. Note that Israel’s covenant was also the constitution of that nation.
- Then Moses came and recounted to the people all the words of the Lord and all the ordinances; and all the people answered with one voice, and said, “All the words which the Lord has spoken we will do!” [Ex. 24:3.]
- The convention which framed the [federal] constitution was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. . . . [T]he people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. [McCulloch v. Maryland, 17 U.S. at 403-404.]
The covenanting parties become a new civil polity, or commonwealth, such as a nation, state or municipality. In the American federal system, each state, as well as the nation, are formed by a constitution which creates a new civil sovereign.
- In America, the powers of sovereignty are divided between the government of the Union, and those of the states. [McCulloch v. Maryland, 17 U.S. at 410.]
Once the people of Israel opted for a human king and made a covenant with him, it became irrevocable. [See, 1 Sam. 10:17-25.] Similarly, modern constitutions are irrevocable as to their general purposes (though the specific means of effecting those objects can be modified).
- Brethren, I speak in terms of human relations: even though it is only a man’s covenant, yet when it has been ratified, no one sets it aside or adds conditions to it. [Gal. 3:15.]
- [A] constitution [is] intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. [McCulloch v. Maryland, 17 U.S. at 415.]
Because the form of civil government is instituted by people and not ordained by God, a constitution can be modified so long as the modification does not violate the purposes of the covenant and complies with the law of nature and the procedural requirements for amendment. Thus, in the case of the nation of Israel, the form of civil government was modified upon the institution of the monarchy.
- Then all the elders of Israel gathered together and came to Samuel at Ramah; and they said to him . . . “Now appoint a king for us to judge us like all the nations.” . . . And the Lord said to Samuel, “Listen to the voice of the people in regard to all that they say to you . . ..” [1 Sam. 8:4-5,7.]
- The constitution is . . . a superior, paramount law, unchangeable by ordinary means . . .. [Marbury v. Madison, 5 U.S. 137, 177.]
The objects of civil government bind the descendants of the original parties to a direct obedience of the terms and conditions of the covenant as long as those objects remain unmodified. Thus, people who are born into a nation are bound by its constitution, even though they have not consented to it.
- We the people of the United States, in order to . . . secure the blessings of liberty to ourselves and to our posterity . . ..” [U.S. Const., Preamble.]
The purpose of a constitution is to provide a framework for the administration of law for the civil polity.
- Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation . . .. [Marbury v. Madison, 5 U.S. 137, 177.]
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* Ver. 2.6. Copyright © 1993-2020 Gerald R. Thompson. All rights reserved. Used by permission. All Bible quotations are from the English Standard Version.