Legal Foundations: The Framework of Law
by Gerald R. Thompson
Having examined the extent to which God has reserved jurisdiction for Himself over human affairs, attention must now be paid to the division of jurisdiction among all human authorities. At the outset, we may note that this jurisdictional inquiry is not simply one concerning the distinctions between church and state. Rather, the present task is to look at the totality of society to determine the fundamental jurisdictional units which make up society, and the legal nature of each.
THE LEGAL STRUCTURE OF SOCIETY
The biblical record indicates that human society is not merely the result of happenstance, nor is it solely the creation of men, however intended or occasioned. Rather, society has been designed and ordered by God in a specific fashion to suit His purposes. That structure reflects the jurisdictional framework of limited and diffuse authority among the legal institutions created by God and the voluntary associations created by men.
Kinds of government.
Human society is made up of many various components, such as families, schools, clubs, corporations, businesses, churches, government agencies, etc. which are distinct in some ways and overlapping in others. The present inquiry will not attempt to reckon with all the various forms of social interaction, but will focus on determining those which are the most basic, or elemental, from a legal standpoint. There are two distinct types of social unit or government in a strictly legal sense, namely, institutions and associations.
Institutions. Institutions are those social relationships which: 1) are created by God; 2) are a condition into which a person is born (or born subject to); 3) are governed by covenant; and 4) have a pre-defined legal relationship. The biblical record indicates that only four such institutions exist, and no others: 1) individual self-government; 2) family government; 3) the body of Christ, or universal Church, government; and 4) civil government.
Associations. Associations are those social relationships which are: 1) created by people; 2) governed by common assent; 3) have a self-defined legal relationship; and 4) a relationship which a person voluntarily joins. Associations include all social relationships other than the legal institutions, such as schools, clubs, employment, businesses, charities, unions, political parties, etc.
Interaction. Associations may assist the legal institutions in carrying out their purposes, but associations may not usurp, or exercise authority over, the jurisdiction of any institution. Since all human authority is derived from God (and not the reverse), the legal authority of human creations is always subservient to the jurisdiction of God’s creations.
The most basic legal institution – the one which applies to every person without exception in exactly the same way – is that of individual self-government. In a relational sense, individual government is not itself a social relationship, because at least two people are required to create a relationship. However, every person has a legal status (in the moral sense) with respect to God, out of which flows certain legal rights with respect to other individuals. Thus, the nature of individuality gives rise to certain rights which are important whenever individuals interact socially.
Created by God. Every individual person is a creation of God. When parents give birth to a child it is not referred to as an act of creation, but of procreation. This latter term denotes that it is God who actually creates human life, not people. Thus, every person who has ever been born can equally claim to have been made in the image of God as a unique creation of God.
- 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.]
An institution one is born into. Every person since Adam and Eve has entered this world the same way – by being born. Birth is the exclusive means by which God has provided for the human race to be propagated.
- For as the woman originates from the man, so also the man has his birth through the woman; and all things originate from God. [1 Cor. 11:12.]
Governed by covenant. The essential rights and duties of every individual are governed by covenant, specifically, the Adamic and Noahic covenants.
Adamic and Noahic covenants. The Adamic and Noahic covenants apply to every individual born since the flood, because everyone born since then is a descendant of both Adam and Noah. The primary duties flowing from those covenants relate to the taking of earthly dominion and the exercise of individual moral responsibility before God.
The mission of the individual. The mission of the individual, or purpose for existence, is twofold: 1) to love God (in fulfillment of the duty to exercise moral responsibility); and 2) to love your neighbor as yourself (in fulfillment of the duty to exercise responsible dominion).
- And He said to him, “‘You shall love the Lord your God with all your heart, and with all your soul, and with all your mind.’ This is the great and foremost commandment. The second is like it, ‘You shall love your neighbor as yourself.'” [Mat. 22:37-39.]
Pre-defined relationship. The relationship of each person with God and other people (solely in their capacity as individuals) is pre-defined. With respect to God, every person is born into sin, that is, separated from God. With respect to other people (as individuals), every person is born equally free and independent (that is, equally made in the image of God).
- . . . just as through one man sin entered into the world, and death through sin, and so death spread to all men, because all sinned . . .. [Rom. 5:12.]
Jurisdiction over others. No person, merely in their individual capacity (that is, by the mere fact of having been born), has the right, or jurisdiction, to rule over any other person. The only jurisdiction people have over others in their individual capacities must arise by consent, such as through a contract or promise.
- That all men are by nature equally free and independent . . .. [Virginia Const. Bill of Rights, Sec. 1.]
The second legal institution, the family, is also the most basic human social relationship. Every person born as an individual is also born into a family, thus, the second legal institution is as pervasive as the first. The family is also the foundational unit upon which the rest of civil society is built. History testifies to the fact that the ethnic and political nations of the world originated in family units dispersed from the tower of Babel [See, Gen. 10:32-11:9.], and that the strength and welfare of any nation depends on the strength and welfare of its member families.
Created by God. Saying that God created the family institution does not mean that He pre-ordains every marriage relationship – that is, no suggestion is made whether God does or does not choose whom people should marry. Rather, the present focus is on the institution, or legal character, of marriage that has been created by God. Thus, the family is not an invention of people to serve a useful or convenient purpose, but a relation imposed by God as part of His design for human society.
- Then the Lord God said, “It is not good for the man to be alone; I will make him a helper suitable for him.” . . . So the Lord God caused a deep sleep to fall upon the man, and he slept; then He took one of his ribs, and closed up the flesh at that place. And the Lord God fashioned into a woman the rib which He had taken from the man, and brought her to the man. And the man said, “This is now bone of my bones, And flesh of my flesh; She shall be called Woman, Because she was taken out of Man.” 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. 2:18,21-24.]
An institution one is born into. Just as every person is born as an individual, so every person is necessarily born into a parent-child relationship which is peculiar to the family institution. (No suggestion is made that a person is born into a marriage relationship.)
Governed by covenant. The family institution is governed by covenant in two senses. First, the authority of the family institution is prescribed by the Adamic and Noahic covenants. Second, the marital relation is governed by the marriage covenant made between a husband and wife.
The Adamic and Noahic covenants. Both the Adamic and Noahic covenants commend mankind to “be fruitful and multiply,” that is, to reproduce through the bearing of children. That the bearing of children is to be lawfully done exclusively within the context of the family institution is inferred by the following: 1) repeated condemnation of adultery [see, e.g., ] and fornication [see, e.g., ]; 2) each time God commanded people to be fruitful and multiply, He was speaking to people living in a lawful marriage relationship [see, Gen. 1:28; 9:1,7]; 3) a fornication could be “cured” by an ensuing marriage [see, Deut. 22:28-29]; and 4) illegitimate children were viewed with disfavor [see, e.g., Deut. 23:2; Hos. 5:7].
The marriage covenant. The marriage covenant governs the relationship between each husband and wife.
The mission of the family. The mission of the family, or purpose for existence, is twofold: 1) to be fruitful and multiply (to bear children); and 2) to subdue and rule over the earth (to exercise earthly dominion).
- 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.]
Pre-defined relationship. The relationship of family members to each other as husband and wife, or as parent and child, is pre-defined. In other words, God has determined the parameters of authority each person may exercise in the family, not leaving the nature, limits and scope of authority to individual determination.
Husband-Wife. As between a husband and wife, there exists a duty of mutual fidelity, which conforms to the prohibition of committing adultery. Further, the husband is to sacrificially love his wife, and the wife is to submit to her husband.
- Wives, be subject to your own husbands, as to the Lord. For the husband is the head of the wife, as Christ also is the head of the church, He Himself being the Savior of the body. . . . Husbands, love your wives, just as Christ also loved the church and gave Himself up for her . . .. [Eph. 5:22-23,25. See also, 1 Pet 3:1-7.]
- “You shall not commit adultery.” [Exodus 20:14.]
Parent-Child. Children owe their parents honor or respect and obedience. Parents owe their children the duty to provide for their welfare.
- “Honor your father and your mother, that your days may be prolonged in the land which the Lord your God gives you.” [Exodus 20:12.]
- Children, obey your parents in the Lord, for this is right. Honor your father and mother (which is the first commandment with a promise), that it may be well with you, and that you may live long on the earth. [Eph. 6:1-3.]
- But if any one does not provide for his own, and especially for those of his own household, he has denied the faith, and is worse than an unbeliever. [1 Tim. 5:8.]
Jurisdiction over others. Within the family institution there exists an authority structure ordained by God for the better ordering and preservation of the family.
Husband is the head of the wife. The role of each husband is to be the head of his wife and the head of his household.
- But I want you to understand that Christ is the head of every man, and the man is the head of a woman, and God is the head of Christ. [1 Cor. 11:3. See also, Num. 1:4.]
Parents are to teach and discipline children. Parents, especially fathers (as the head of the household), have the original jurisdiction to train, educate and discipline their children. This authority is often referred to as the power of “the Rod.”
- And, fathers, do not provoke your children to anger; but bring them up in the discipline and instruction of the Lord. [Eph. 6:4.]
- He who spares his rod hates his son, But he who loves him disciplines him diligently. [Prov. 13:24.] Train up a child in the way he should go, Even when he is old he will not depart from it. [Prov. 22:6.]
- It is for discipline that you endure; God deals with you as with sons; for what son is there whom his father does not discipline? But if you are without discipline, of which all have become partakers, then you are illegitimate children and not sons. [Heb. 12:7-8.]
The government referred to here is that of the universal Church, that is, all of the people who participate in the Church covenant, collectively known as the body of Christ. This government is unique among the institutions in that it alone has to do with the legal relationship between God and mankind. However, the Church also has a social aspect, in that all the members of the body of Christ are joined to each other in the common bond of faith. This social relation has its own form of government, for the various spiritual gifts, ministries and offices in the Church are appointed by God for the edification of all of the members of the body.
Created by God. The universal Church, or body of Christ, was not invented by any man. Rather, the community of faith was ordained by God to serve the purposes of its head, Jesus Christ, to advance His mission in the world.
- For by one Spirit we were all baptized into one body, whether Jews or Greeks, whether slaves or free, and we were all made to drink of one Spirit. . . . But now God has placed the members, each one of them, in the body, just as He desired. . . . But God has so composed the body . . .. Now you are Christ’s body, and individually members of it. And God has appointed in the church, first apostles, second prophets, third teachers, then miracles, then gifts of healings, helps, administrations, various kinds of tongues. [1 Cor. 12:13,18,24,27-28.]
An institution one is born into. Unlike the physical birth which characterizes the other legal institutions, birth into the Church is spiritual in nature. This spiritual rebirth is often referred to as being “born again.”
- Jesus answered and said to him, “Truly, truly, I say to you, unless one is born again, he cannot see the kingdom of God.” Nicodemus said to Him, “How can a man be born when he is old? He cannot enter a second time into his mother’s womb and be born, can he?” Jesus answered, “Truly, truly, I say to you, unless one is born of water and the Spirit, he cannot enter into the kingdom of God. That which is born of the flesh is flesh, and that which is born of the Spirit is spirit. Do not marvel that I said to you, ‘You must be born again.'” [Jn. 3:3-7.]
Governed by covenant. The universal Church is governed by the Church covenant (the new covenant in Christ Jesus).
The Church covenant. By His death and resurrection, Christ Jesus inaugurated a new covenant for all those who believe in Him.
- But now He has obtained a more excellent ministry, by as much as He is also the mediator of a better covenant, which has been enacted on better promises. [Heb. 8:6.]
The mission of the Church. The mission of the Church, or purpose for existence, is twofold: 1) to evangelize (gain converts in every nation); and 2) to disciple (teach everything that Christ commanded).
- 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; and lo, I am with you always, even to the end of the age.” [Mat. 28:18-20.]
Pre-defined relationship. Upon becoming a Christian, a person’s relationship with God is pre-defined. Previously alienated from God and born separated from Him, each Christian becomes legally adopted as a son of God and is recognized as a fellow heir with Christ.
- For you have not received a spirit of slavery leading to fear again, but you have received a spirit of adoption as sons by which we cry out, “Abba! Father!” The Spirit Himself bears witness with our spirit that we are children of God, and if children, heirs also, heirs of God and fellow heirs with Christ, if indeed we suffer with Him in order that we may also be glorified with Him. [Rom. 8:15-17; See also, Gal. 4:4-7.]
Jurisdiction over others. The Church has jurisdiction over its own members to judge disputes between them, to discipline them (by censure) for wrongs done against the body, and as a last resort, to fully dissociate from (or “excommunicate”) an unrepentant offender. This authority is often called the power of “the staff,” or “the keys.”
- “And if your brother sins, go and reprove him in private; if he listens to you, you have won your brother. But if he does not listen to you, take one or two more with you, so that by the mouth of two or three witnesses every fact may be confirmed. And if he refuses to listen to them, tell it to the church; and if he refuses to listen even to the church, let him be to you as a Gentile and a tax-gatherer.” [Mat. 18:15-17.]
- But actually, I wrote to you not to associate with any so-called brother if he should be an immoral person, or covetous, or an idolater, or a reviler, or a drunkard, or a swindler – not even to eat with such a one. For what have I to do with judging outsiders? Do you not judge those who are within the church? But those who are outside, God judges. Remove the wicked man from among yourselves. Does any one of you, when he has a case against his neighbor, dare to go to law before the unrighteous, and not before the saints? Or do you not know that the saints will judge the world? And if the world is judged by you, are you not competent to constitute the smallest law courts? Do you not know that we shall judge angels? How much more, matters of this life? [1 Cor. 5:11-6:3.]
When people speak of government today, they typically are referring to civil government, though there are actually four kinds of institutional government as shown herein. And although civil government is among the basic legal institutions, a word of caution is in order, since it differs from the other institutions in some significant respects. Therefore, a careful examination of scripture is most important here, for a misinterpretation of God’s law on this matter can have very great and undesirable consequences.
Created by God. When it is said that civil government is created by God, there are certain things which such a statement does not mean. That is, God does not delegate civil authority to particular individuals to rule over others – there is no divine right of kings. Neither does He prescribe the form of government which any specific nation must embrace as the best or most lawful form of polity. Rather, God has vested everyone (i.e., “the people”), through the Noahic covenant, with civil authority, which the people may then delegate to their rulers.
Thus, to say that God “creates” civil government is simply to acknowledge that as a legal institution: 1) the nature of civil authority is established by (or, originates from) God; and 2) civil rulers are ministers of God to do His will in civil matters with civil power. By implication, civil authority is also subject to certain limitations prescribed by God.
- 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. Therefore he who resists authority has opposed the ordinance of God; and they who have opposed will receive condemnation upon themselves. [Rom. 13:1-2.]
Although rights are endowed by God, governments are instituted “among men,” that is, by their consent. In other words, God does not dictate, endow, or impose any particular form of civil government on any people. However, He has seen fit to allow people to participate in the establishment of civil government. This was true even in ancient Israel, where God Himself was the civil ruler of that nation.
God did not unilaterally set a king over Israel. When He appointed Saul as king, it was only in response to the demand of the people for a king. God imposed the law of Israel, but He did not impose its form of government.
- “When you enter the land which the Lord your God gives you, and you possess it and live in it, and you say, ‘I will set a king over me like all the nations who are around me,’ you shall surely set a king over you whom the Lord your God chooses . . .. Now it shall come about when he sits on the throne of his kingdom, he shall write for himself a copy of this law on a scroll in the presence of the Levitical priests. And it shall be with him, and he shall read it all the days of his life, that he may learn to fear the Lord his God, by carefully observing all the words of this law and these statutes.” [Deut. 17:14-15,18-19.]
- Then all the elders of Israel gathered together and came to Samuel at Ramah; and they said to him, “Behold, you have grown old, and your sons do not walk in your ways. Now appoint a king for us to judge us like all the nations.” [1 Sam. 8:4-5.]
Israel’s sin was limited to rejecting God’s direct rule and asking for a lawless king. No sin was occasioned by the mere establishment of a new form of civil government, i.e., a monarchy, for the people had that inalienable right. If the request for a monarch had been itself lawless, God would not have consented to its institution.
- And the Lord said to Samuel, “Listen to the voice of the people in regard to all that they say to you, for they have not rejected you, but they have rejected Me from being king over them. . . . Now then, listen to their voice; however, you shall solemnly warn them and tell them of the procedure of the king who will reign over them.” So Samuel spoke all the words of the Lord to the people who had asked of him a king. . . . Nevertheless, the people refused to listen to the voice of Samuel, and they said, “No, but there shall be a king over us . . ..” Now after Samuel had heard all the words of the people, he repeated them in the Lord‘s hearing. And the Lord said to Samuel, “Listen to their voice, and appoint them a king.” [1 Sam. 8:7,9-10,19,21-22.]
God’s appointment did not, and could not, take office until after the people consented to the king. Samuel’s mere anointing of Saul did not make Saul king [see, 1 Sam. 10:1.]. Rather, Saul legally became king only after his appointment had been assented to by the people when they shouted, “Long live the king!”
- Thereafter Samuel called the people together to the Lord at Mizpah . . .. And Samuel said to all the people, “Do you see him whom the Lord has chosen? Surely there is no one like him among all the people.” So all the people shouted and said, “Long live the king!” [1 Sam. 10:17,24.]
The repeated pattern throughout scripture is that civil rulers merely have the authority to propose changes in the form of civil government. Such changes have no legal effect until they have been ratified by the people. The whole people acting as a community have the inalienable right to institute their own government, not their civil rulers.
Thus, David was anointed to be Israel’s next king by God [see, 1 Sam. 16:1-13], but he did not take office until he was confirmed by the people. This point is underscored by the fact that David was initially confirmed as king only over two tribes of Israel, and did not rule over the other ten tribes until they had separately consented to his rule seven years later.
- And David brought up his men who were with him, each with his household; and they lived in the cities of Hebron. Then the men of Judah came and there anointed David king over the house of Judah. . . . So all the elders of Israel came to the king at Hebron, and King David made a covenant with them before the Lord at Hebron; then they anointed David king over Israel. David was thirty years old when he became king, and he reigned forty years. At Hebron he reigned over Judah seven years and six months, and in Jerusalem he reigned thirty-three years over all Israel and Judah. [2 Samuel 2:3-4; 5:3-5.]
Similarly, even when people sin by submitting to a lawless civil ruler, God waits for them to act lawfully – He does not usurp the authority of the people. This is illustrated in the case of Athaliah, the mother of Ahaziah, king of Judah. [See, 2 Chr. 22:10-23:21.] When he died, she ordered all of his sons to be slain so she could rule as queen in their place. Of course, the sons of Ahaziah were the rightful rulers of Israel by virtue of the Davidic covenant. [See, 2 Sam. 7:1-29.]
However, the baby Joash, son of Ahaziah, was rescued from the slaughter by an aunt, and was hid in the house of the Lord for six years. At the age of seven, Joash was installed as the lawful king of Judah, and Athaliah was killed. Yet, Joash did not ascend the throne until after being confirmed by the people.
- Then they brought out the king’s son and put the crown on him, and gave him the testimony, and made him king. And Jehoiada and his sons anointed him and said, “Long live the king!” . . . Then Jehoiada made a covenant between himself and all the people and the king, that they should be the Lord‘s people. [2 Chr. 23:11,16.]
An institution one is born into or subject to. The pattern of the laws of the United States is that a person born within the nation’s territorial boundaries is a natural-born citizen. This pattern is also variously reflected in biblical examples.
The descendants of Jacob (renamed Israel by God), or the Israelites, were each born a member of the national polity (a “citizen”) of Israel.
- And God said to him, “Your name is Jacob; You shall no longer be called Jacob, But Israel shall be your name.” Thus He called him Israel. God also said to him, “I am God Almighty; Be fruitful and multiply; A nation and a company of nations shall come from you, And kings shall come forth from you.” [Gen. 35:10-11.]
Note: The children of aliens living in the land of Israel would not be deemed Jews, but they would be born subject to the polity of Israel. Also note: National citizenship is not necessarily a permanent condition – a person can voluntarily subject himself to another nation’s polity and become a citizen there.
The pattern was also followed by Rome. Thus, Paul was born a Roman citizen.
- And the commander came and said to him, “Tell me, are you a Roman?” And he said, “Yes.” And the commander answered, “I acquired this citizenship with a large sum of money.” And Paul said, “But I was actually born a citizen.” [Acts 22:27-28.]
Governed by covenant. The original grant of civil authority to all people was made by God in the Noahic covenant, when he first authorized people to execute murderers. In terms of actual civil polity, however, the governing instrument will be whatever form of civil covenant, or constitution, has been assented to by the people.
The civil covenant. The hallmark of civil rule by covenant in the history of Anglo-American jurisprudence is the principle of the consent of the governed. Thus, a civil covenant, as any other covenant, must be assented to by the parties before it can be binding upon them.
Samuel Rutherford stated that kings ruled not by divine right, but by the consent of the people.
- We hold that the covenant is made betwixt the king and the people, betwixt mortal men; but they both bind themselves before God to each other. [Samuel Rutherford, Lex Rex (1644).]
John Locke made the same claim:
- Men, being, as has been said, by nature all free, equal and independent, no one can be put out of this estate and subjected to the political power of another without his own consent. The only way whereby anyone divests himself of his natural liberty and puts on the bonds of civil society is by agreeing with other men to join and unite into a community for their comfortable, safe and peaceable living one amongst another, in a secure enjoyment of their properties and a greater security against any that are not of it. [John Locke, Second Treatise on Government (1698).]
Similarly, the Declaration of Independence states:
- We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.
The mission of civil government. The mission of civil government, or its purpose for existence, is two-fold: 1) to punish wrongdoers; and 2) to commend what is right. Although the following scripture is not part of any specific civil covenant, or constitution, it is descriptive of God’s law pertaining to civil authority.
- Submit yourselves for the Lord’s sake to every human institution, whether to a king as the one in authority, or to governors as sent by him for the punishment of evildoers and the praise of those who do right. [1 Pet. 2:13-14.]
Pre-defined relationship. The relationship and rights of each citizen and subject with respect to civil government are pre-defined. However, this principle only applies to inalienable rights (which are granted by God), not to political rights granted by men. Thus, all people have the right to expect, and civil rulers have a duty to perform, the punishment of wrongdoers according to the dictates of the laws of nature and the Bible, and the administration of the law according to true principles of justice. Further, civil rulers are to commend what is right by securing individual rights and by protecting individual liberties. In all cases, questions of what things are lawful, just, right or matters of liberty are to be determined by the law of God.
- “You shall appoint for yourself judges and officers in all your towns which the Lord your God is giving you, according to your tribes, and they shall judge the people with righteous judgment. You shall not distort justice; you shall not be partial, and you shall not take a bribe, for a bribe blinds the eyes of the wise and perverts the words of the righteous. Justice, and only justice, you shall pursue, that you may live and possess the land which the Lord your God is giving you.” [Deut. 16:18-20.]
Jurisdiction over others. When people covenant together to form a political or civil community, part of the necessary delegation of authority to civil rulers is the power to punish wrongdoers, even to the point of death in certain cases. This authority is often referred to as the power of “the Sword.”
- “Whoever sheds man’s blood, By man his blood shall be shed, For in the image of God He made man.” [Gen. 9:6.]
- For rulers are not a cause of fear for good behavior, but for evil. Do you want to have no fear of authority? Do what is good, and you will have praise from the same; for it is a minister of God to you for good. But if you do what is evil, be afraid; for it does not bear the sword for nothing; for it is a minister of God, an avenger who brings wrath upon the one who practices evil. [Rom. 13:3-4.]
Voluntary associations are all the social relationships other than the legal institutions described above. Associations are non-institutional in character because they are 1) created by people; 2) governed by common assent; 3) have a self-defined legal relationship; and 4) a relationship which a person voluntarily joins. An association, in its own right, has no jurisdiction over anyone except its members, who have voluntarily submitted to its governing instruments by choosing to associate. The only jurisdiction an association may have over non-members must arise by consent, such as through a contract or promise.
Having examined the nature and extent of the jurisdiction of the four basic legal institutions, some conclusions may now be logically deduced as to how these institutions interrelate with each other.
The institutions are factually concurrent. In practical terms, the legal institutions are concurrent. That is, the institutions are capable of existing, and do exist, at the same time.
A person may be, and usually is, governed by multiple legal institutions at the same time. Thus, a person may be an individual, a family member, a member of the Church, a citizen and a member of any number of voluntary associations, all at the same time.
Conversely, a person cannot generally be a member of any one legal institution to the complete exclusion of all the others. It is theoretically possible, of course, for a person whose family has died, who is not a member of the Church, who lives on an uncharted desert island and who has no associates, to be purely “an individual.” However, any person living in civil society will necessarily be subject to multiple legal institutions at the same time. No one has the right to declare himself free of all institutional attachments merely by virtue of a self-declaration. Thus, the jurisdictional view examined above does not “fractionalize” society into distinct groups of people, some of whom are “the family,” or “the Church,” or “the state,” or individual “freemen.”
The institutions are legally discrete. Notwithstanding the foregoing factual overlap among the institutions, they are legally discrete. This is an important distinction to make as it relates to the legal authority, purpose, or jurisdiction of the institutions.
God did not give the same authority to more than one legal institution at the same time. Thus, the authority to bear children and take dominion was not given to the Church or to civil government, but solely to the family (individual family members are able to exercise dominion, however). The authority to evangelize and disciple people was not given to the family (which can teach and discipline its children, but not other people) or to civil government, but solely to the Church. The authority to punish (kill) wrongdoers and to commend what is right (a just administration of the law) was not given to the family (which can punish its children, but not to the point of death) or to the Church (which can only excommunicate its members), but solely to the civil polity.
Accordingly, people who rule over others for one purpose may be ruled by others for another purpose. An individual’s authority depends not on who he or she is, but the purpose for which their authority is given. In other words, a father cannot claim paternal authority as a basis for ruling over others in the Church. A church elder cannot claim ecclesiastical authority as a basis for ruling over others in the nation. And a public official cannot claim civil authority as a basis for ruling over the members of a family. No one can claim that his status as a father, elder or official exempts him from being ruled over by others according to the jurisdictional authority they have.
God’s design has no legal conflicts. In constituting the legal institutions the way he did, God did not create any inherent jurisdictional conflicts. That is, the social order God has designed, like the world itself when He had finished creating it, is “very good.” The fact that people have perverted God’s system does not make His system flawed.
Among the legal institutions, none is superior compared to the others. Each is equally accountable directly to God, and each of the social relations (family, church and civil polity) are equally accountable to the people who consent to them. The idea that civil polity is the highest attainment of humanity, or that it is legally paramount to the other legal institutions, is biblically insupportable.
Similarly, God never delegated legal authority to any institution to enforce His law concerning any other institution. That is, God never authorized the church or civil polity to superintend the activities of the family, nor the civil polity to superintend the church. For that matter, none of the other institutions has any right to infringe the jurisdiction (or, rights) of the individual. If two institutions claim authority over the same people for the same purposes, one of them is a jurisdictional usurper and is legally in the wrong. The protection of each of the institutions from jurisdictional usurpation is the very essence of liberty.
These concepts of jurisdictional interrelationship among the legal institutions are important in understanding various claims of legal immunity. Of particular historical importance is the claim made by some religious traditions that the Church, its members or its leaders, are immune from civil authority. Certainly this was the basis for the historic separation of canon law and common law courts in England, as well as the “benefit of clergy,” by which clerics were immune from many civil laws based solely on who they were.
Common immunity arguments.
Some of the historic arguments for civil immunity of the Church are as follows:
Immunity based on institutional separation. Perhaps the most widely advanced concept of immunity is based on the idea of institutional separation. According to this view, since the Church and civil polities are legally discrete, jurisdictionally equal, and each directly accountable to God rather than to each other, the Church is immune from civil regulation. This argument, though appealing, is flawed.
It is true that the Church and civil polities are legally discrete, jurisdictionally equal, and each directly accountable to God rather than to each other. However, the immunity argument fails to account for the fact that people who rule over others for a religious purpose (i.e., church leaders) may be ruled by others (i.e., public officials) for a valid civil purpose. The immunity argument also tends to portray church leaders or members as belonging to the Church institution to the exclusion of civil institutions. In other words, the immunity argument ignores the fact that the Church and civil institutions are overlapping (concurrent) as to persons, and attempt to make them factually discrete as well as legally discrete.
Another flaw is based on a misreading of Luke 20:25, “Then render to Caesar the things that are Caesar’s, and to God the things that are God’s.” This is sometimes taken to mean that there are two primary institutions in society, the Church and the State. However, in this scripture, “Caesar” does not equal “State” and “God” does not equal “Church.” The jurisdictional distinction made by Jesus is not between human institutions, but between God and humanity. In other words, the jurisdictional distinction being referred to is between morality and law, or God’s reserved jurisdiction vs. man’s delegated jurisdiction.
Further, there are four co-equal legal institutions, not just two. If members of the Church are legally immune from civil regulation, then there is no legal reason why members of every family institution would not be equally immune from civil regulation. The same is true for every member of an “individual institution.” Consequently, the logical result of the immunity argument is not civil immunity, but civil anarchy.
CAVEAT: The argument advanced here is not to be pressed too far, that is, it does not argue against the existence of a right of civil disobedience. The above argument essentially holds that a person cannot rightfully claim to defeat the legitimate exercise of civil authority by exercising legitimate Church authority. It is possible that civil government may take actions inconsistent with, or beyond the scope of, its legitimate authority, in which case civil disobedience may be proper. However, strictly speaking, this is not a case of legal or jurisdictional “immunity.” The better way to view legitimate disobedience is to say that civil government has usurped the rightful jurisdiction of the Church (or individuals or families), rather than to talk in terms of immunity. Immunity implies that a general rule which would otherwise legitimately apply requires a special exception for certain people or groups. Disobedience, on the other hand, implies that the rule itself is illegitimate for all people.
Immunity based on religious belief. Another argument for immunity which undergirds conscientious objector status and certain exemptions from employment taxes, among other laws, is based on religious belief. This argument posits that because individuals have freedom of thought and religion based on God’s reserved jurisdiction over the heart and mind, that some conduct motivated by a sincerely held religious belief is immune from civil regulation.
The basic flaw with this argument is that “religion” and the matters which come under its jurisdiction are not subjectively defined. Rather, religion is, as stated in the Virginia Const. Bill of Rights [§16], defined as the duty which we owe to our Creator and the manner of discharging it. This is an objective, not a subjective, legal test. Whether specific conduct is religious or not does not depend on what the actor believes – if that were the case, every form of deviant or criminal behavior could be claimed to be “religious” by someone. Rather, what constitutes religion is defined by the duties we owe to the Creator, which duties are in turn objectively defined by the revealed law of God (who is the Creator).
Additionally, “religious” beliefs are no more or less a part of God’s reserved jurisdiction over the heart and mind than “non-religious” beliefs. The essence of freedom of the mind is that all thoughts are equally immune from civil regulation. To carve out certain thoughts for protection that other thoughts do not enjoy is antithetical to the very nature of the jurisdictional claim of freedom of the mind.
Consequently, just as the beliefs of everyone (whether “religious” or not) are truly beyond the authority of civil government to regulate, so the deeds of everyone are subject to some form of human regulation, whether by the family, Church or civil polity. The only deeds which are truly immune from all human regulation (other than by the exercise of individual self-government) are those deeds which are governed exclusively by the law of love. However, even in this case, the exclusion of such conduct from civil regulation exists irrespective of subjective belief.
Immunity based on citizenship. Another argument for immunity is based on the idea of citizenship. According to this hypothesis, heavenly citizenship [see, Phil. 3:20] provides a legal means by which a person may be immunized from certain civil regulation.
However, this argument ignores the fact that just as a person cannot be a member of any one legal institution to the complete exclusion of all other institutions, so a person need not be a citizen of one kingdom to the exclusion of all other kingdoms. In the American federal system, people are citizens of the nation and of the state in which they reside: these are two separate citizenships existing concurrently. In this there is no conflict – why must earthly citizenship and heavenly citizenship conflict? Indeed, “heavenly” citizenship is nothing more than participation in the new covenant in Jesus Christ, that is, membership in the universal Church. And as noted earlier, it is quite possible for membership in the Church and civil citizenship to apply to the same person.
Also, heavenly citizenship does not “erase” our earthly citizenship. The biblical record is quite clear that all people start out as, and end up as, citizens of earth regardless of whether they also become members of the Church. The proof is as follows: a) all people originate on the earth [see, Gen. 2:7]; b) all people shall return to the earth [see, Gen. 3:19 and Ecc. 12:5-7]; and c) what we call “heaven” is really a new city to be placed on the new earth [see, Rev. 21:1-2,23-24].
Moreover, earthly citizenship is a tool for the gospel, as demonstrated in the life of Paul, who used his Roman citizenship as a means of bringing the gospel to Caesar’s household. [See, Acts 22:25,29; 23:11.] Thus, there is no inherent incompatability between earthly and heavenly citizenship.
There is one law.
Many of the arguments in favor of church immunity from civil laws impliedly posit the existence of two sets of laws: one which governs the Church as an institution and/or its members individually, and another set of laws governing everyone else. However, there are a number of reasons why this is simply not true:
There is only one law of nature, and it applies to all people without exception.
Among the divine covenants revealed in the Bible, the Adamic and Noahic covenants apply to all people irrespective of individual belief, group affiliation, or participation in the Church covenant. Israel’s covenant and the Davidic covenant apply exclusively to the Jews, as does much of the Abrahamic covenant.
Although participation in the Church covenant (and the “spiritual” aspects of the Abrahamic covenant to which it relates) apply solely to Christians, this fact has no legal significance insofar as civil government is concerned. The only matters to which these covenants relate are citizenship in God’s kingdom (which is a matter of God’s reserved jurisdiction over the heart) and the authority to proclaim the true gospel of God (which relates to freedom of the mind). However, it cannot be claimed on this basis that religious freedom applies only to Christians and not to others.
The proclamation of religious truth is within the jurisdiction of the heart and mind to which every person owes account solely to God. For this reason, civil rulers cannot lawfully regulate the transmission of ideas – but this applies to “heathen” as well as Christians, and to error as well as truth. Civil officials cannot proclaim some religious ideas “true,” and others “false.” Neither can civil officials legally determine who is a Christian and who is not. Therefore, as far as civil laws are concerned, both Christians and non-Christians have the same freedom of religion legally (they are under the same law of religious freedom, not two different laws), irrespective of participation in the Church or Abrahamic covenants.
Other jurisdictional problems with Church immunity.
Morality jurisdiction. Since membership in the universal Church is a matter of the heart which is within the reserved jurisdiction of God, no civil law or public official has the jurisdiction to determine who is or is not a Christian. In essence, this removes the possibility that any civil law or public official can define what is a “church,” because they have no jurisdiction to determine who the members of the Church are. Consequently, if the law cannot define what a “church” is, how can the law regard the Church as immune from its operation?
Law of equality. An attribute of the law of nature is that all laws are to be uniform (applicable to all people alike). Indeed, the non-uniform administration of law (partiality) is a hallmark of injustice. The civil ruler must therefore treat all people equally, that is, without partiality based on membership in any other legal institution. This includes individuals, families and churches. For any civil ruler to apply one law to the Christian and another law to non-Christians would violate the law of the nature of equality and be an injustice. In essence, a civil ruler has no jurisdiction to be partial in the administration of law.
Authority delegation. It is sometimes contended that the Church as a corporate body enjoys legal immunity that would otherwise not apply to members of the Church in their individual or familial capacities. But from where is such immunity derived? All human authority, as we have seen, is delegated, not inherent. As respects the corporate Church, any delegation of authority must come either from the individual members of the Church or directly from God.
Although individual Church members may covenant with each other for the better ordering of their affairs, they cannot delegate to the corporate body more than what they themselves possess. In other words, if the individual Church members and their families have no legal immunity, how can they delegate it to another body? For that matter, every temporal church is a voluntary association of individuals – but no voluntary association (a creation of men) can usurp the jurisdiction of any legal institution (a creation of God), such as civil government.
As for God, He has delegated all authority in the Church via the new covenant in Jesus Christ. But, there is no authority granted by the terms of that covenant in which each individual Christian fails to share. In other words, there is no covenantal delegation to the corporate body which is greater than what is given to each of its members. So then, Christians in voluntary association have no more rights as a group than each individual Christian already has. Further, there are no “corporate rights” possessed by the Church which can defeat the legitimate jurisdiction of civil government.
Conclusion. Although the jurisdiction of civil government is limited, where that jurisdiction is legitimate, no one is immune by reason of their membership in any other legal institution.
* Copyright © 1993, 2010 Gerald R. Thompson. Used by permission.