“To them also, as a body politic, he gave sundry judicial laws, which expired together with the state of that people, not obliging any other now, further than the general equity thereof may require.” (Westminster Confession of Faith, 19.4)
This has been a section of the Westminster Confession which has met with differing interpretations, especially in more recent decades. In particular, it has become central to the question of whether “theonomy” is within the boundaries of the Westminster standards. It also was a point of contention when in 2001 the 68th General Assembly of the OPC declared that “the use of women in military combat is both contrary to nature and inconsistent with the Word of God.”1 A protest to this action objected to this declaration in part because it argued “largely from Old Testament narrative and civil law,” citing 19.4 of the Westminster Confession as a reason why this biblical support was “highly dubious.”2 In my own experience, talking to people and reading books on the Westminster Confession, there is a bit of confusion as to the meaning of this paragraph about the judicial laws.
I take this paragraph of our confession to mean that the judicial laws of Moses are not obligatory for any other nation further than their general equity may require. The reason is that they expired with the state of that people. Yet this also means that these laws do oblige and bind modern nations to the extent that their general equity requires their observance. I submit these initial observations:
It is incorrect to say that they only have relevance for the church, as the new covenant Israel. While Paul does apply judicial laws to the church, this does not mean they no longer apply in some sense to the political sphere. 19.4 clearly states that these laws have a certain binding relevance for states.
It is also incorrect to say that equity (i.e. justice or fairness) has replaced the judicial laws in civil affairs. Rather, the Confession teaches that the judicial laws themselves are binding to an extent based on their connection with general equity (universal principles of justice).
The reason given for this expiration is the expiration of the state of Israel. We cannot go back to the original context of ancient Israel. The reason that these laws in their specific form and circumstances have expired is because the original context no longer exists. Thus, to apply these laws today, one must discern what was grounded in the unique position of ancient Israel and what was grounded in the moral law.
The general equity of the judicial laws refers to the universal and moral basis for those laws, in contrast to other factors such as Israel’s unique position in redemptive history and the context of ancient times. This general equity was thus related to the concept of the moral or natural law.
The Use of General Equity in 17th Century Reformed Theology
Thomas Shepherd, a Puritan minister who had moved to New England in the 1630s, described to what extent the judicial laws apply to all nations in this way:
The learned generally doubt not to affirme, that Moses judicials binde all nations, so farre forth as they containe any morall equity in them, which morall equity doth appeare, not onely in respect of the end of the law, when it is ordered for common and universall good, but chiefely in respect of the law which they safeguard and fence, which if it bee morall, it's most just and equall, that either the same or like judiciall fence (according to some fit proportion) should preserve it still, because 'tis but just and equall, that a morall and universall law should bee universally preserved. 3
In other words, these laws bind nations to the extent that they contain moral equity. This moral equity can be discovered by looking at the end of the law (is it universal or particular) and the kind of law that it “fences” (is it moral or ceremonial). If it is based on a universal and moral law, then the judicial law (or its equivalent) is also universal and binding.4
It should be noted that Shepherd got this idea from the “learned,” and one of the two learned men he cites by name is Johannes Piscator (1546—1625), a German Reformed theologian whose writings were studied in England and Scotland as well as on the Continent. Piscator argued in an influential appendix to his commentary on Exodus that
the magistrate is obliged to those judicial laws which teach concerning matters which are immutable and universally applicable to all nations, but not to those which teach concerning matters which are mutable and peculiar to the Jewish or Israelite nations for the times when those governments remained in existence. 5
He then argued for this thesis by seven proofs, defended it against twenty-two objections, and applied it as an example to the case of theft.
In other words, those judicial laws that regard matters “which are immutable and universally applicable to all nations” still oblige nations, but not those that concern mutable matters peculiar to Israel. Of course, sometimes it is not so clear cut. A law might concern a matter which in some details was peculiar to Israel, but in other ways was universal to all nations, and so Shepherd says they bind all nations “as farre forth as they containe any morall equity in them,” or as our confession says, as far as “the general equity thereof may require.” As another Puritan pastor would say in 1648, “So far as it was a sense and outworking of the moral law, it stands with the moral law, and that still binds upon men. So the judicial law that was a fence to that, is still the duty of magistrates.”6
When Thomas Edwards, a Presbyterian pastor in London, wrote concerning the judicial laws in 1647, he quoted Piscator’s views on the judicial laws, as well as another German Reformed theologian, Heinrich Alting (1583 – 1644). Alting distinguished between judicials laws based on particular right, such as those peculiar to the Jews, and laws based on common right, enacted according to the law of nature.7 It seems that the popular distinction between what is universal/common and what is mutable/peculiar provides the significance of the “general” in “general equity.” “General” is here synonymous with “universal” and “common.” To the extent that a law is of general rather than particular equity, this judicial law obliges nations today.
For some laws, their general equity requires nations to observe them to the full extent because the judicial law only regards unchangeable matters. For other laws, the general equity does not require nations to observe them because they deal with matters that were mutable and/or peculiar to Israel. Other laws will be a mix, where a principle taken from the law is still binding, but the details are not. Even in these cases, the details give us a concrete example of how this moral principle was applied in a certain context, which is helpful for us as we seek an equivalent application that fits our situation.
The Men of the Westminster Assembly on General Equity
The Westminster Assembly incorporated this concept into its confession of faith. While the 39 Articles of the Church of England had formerly stated that the “civil precepts” of the law of Moses ought not “of necessity to be received in any commonwealth” (article 7), the concept that they did oblige commonwealths according to the general equity thereof was a Puritan improvement developed by decades of theological reflection. Johannes Piscator’s appendix to his commentary on Exodus, cited above, was cited favorably by men at the Westminster Assembly (George Gillespie, Francis Cheynell, and Samuel Rutherford) in explaining the judicial laws.8
While a member of the assembly, Samuel Bolton published The True Bounds of Christian Freedom (1645). In this book, he said “in respect of the ceremonial and the judicial law we find few dissenters. All the controversy arises from the third part, the moral law.”9 Here is how he explained the view of the judicial law from which he found few dissenters:
As for the judicial law, which was an appendix to the second table, it was an ordinance containing precepts concerning the government of the people in things civil, and it served three purposes: it gave the people a rule of common and public equity, it distinguished them from other peoples, and it gave them a type of the government of Christ. That part of the judicial law which was typical of Christ's government has ceased, but that part which is of common and general equity remains still in force. It is a common maxim: those judgements which are common and natural are moral and perpetual.10
Another member of the Westminster Assembly, William Gouge, used the concept of general equity in his commentary on Hebrews. He used it in looking at the laws governing the provision of the Levites, determining that this was partly of the judicial law, party of the ceremonial law, and that the general equity drawn from these laws was part of the moral law. The details of these judicial laws obviously do not apply anymore, since they regarded the order of the Levites and the Promised Land, but the principle, being moral, still obliges (in this case it obliges the church, since it originally referred to the Israelite church, not the Israelite state). He wrote that the general equity of these laws was “that they who communicate unto us spiritual matters should partake of our temporals: and that they who are set apart wholly to attend God’s service should live upon that service.”11
In another place in the same commentary, Gouge had a section on the judicial law. He noted that the nations are not tied to these laws with respect to how they were made answerable to the particular condition of Israel; the nations have liberty to make wholesome laws agreeable to their own context.12 Yet, Gouge goes on to divide the judicial law into two parts, (1) those laws that regard the Jewish priesthood and the distinguishing of tribes and (2) those laws that “rested upon common equity, and were means of keeping the moral law: as putting to death idolaters and such as enticed others thereunto; and witches, and willful murderers, and other notorious malefactors. So likewise laws against incest and incestuous marriages; laws of reverencing and obeying superiors and governors; and of dealing justly in borrowing, restoring, buying, selling, and all manner of contracts...”13 The first sort “were abolished together with the priesthood,” but the second sort “remain as good directions to order even Christian polities accordingly.”14 Note that the laws concerning the Levites were of the first sort, and even these “abolished” laws manifest principles that remain binding (see preceding paragraph). The second sort is not abolished like the first, so more than their basic principles remain applicable. The laws that rest upon common equity continue as good directions to order even the laws of modern nations.
Gouge played an important role in the Westminster Assembly, and his list of laws that rest on common equity is reflected in the laws which were directly incorporated into the Larger Catechism, such as those of capital punishment for murder, restitution for theft, and not removing landmarks (WLC questions 136, 141, 142). Since these laws dealt with matters unchangeable and universal, they still oblige nations today.
Conclusion
This section of the Westminster Confession does not spell out how to apply each judicial law. Rather, it gives us a hermeneutical principle. It gives us a question to ask when we come to apply a judicial law to our modern context. The Westminster Confession seems to allow for differing opinions as to how far the general equity of the judicial laws requires their obligation, allowing some to argue for greater continuity and others arguing for less continuity. But that there is some continuity and some discontinuity, and that the principle to distinguish the two is that of general equity, is affirmed by the Westminster Confession.
To conclude with a brief practical example: the rules for warfare in Numbers 1 and Deuteronomy 20 certainly include some things unique to Israel that no longer oblige nations today, such as the particular rules about devoting to destruction the towns within Canaan (Deut. 20:15-18). But does not Deuteronomy 20 itself distinguish between unique rules for war in Canaan and rules for war against more distant nations (Deut. 20:15)? And what is it about gender roles in battle that is unique to Israel? Is this not something universal, founded on natural/moral law? God made male and female different from the beginning (Gen. 1:27). Adam was given the duty to guard the Garden of Eden (Gen. 2:15), responsible for the woman as her head (1 Cor. 11:3). The male seed of the woman would crush the serpent as Adam should have done (Gen. 3:15), while the woman was called “mother of all living” (Gen. 3:20). The woman should be shown honor because she is the “weaker vessel” (1 Peter 3:7). None of these texts apply this distinction to the field of battle, but with this background in mind, it seems clear that the distinction made between male and female in Numbers 1 and Deuteronomy 20 is grounded in general equity, and is therefore binding on nations today.
1 “Report of the Committee on Women in the Military and in Combat” Presented to the Sixty-eighth (2001) General Assembly of the Orthodox Presbyterian Church. https://opc.org/GA/WomenInMilitary.html
2 Ibid. The position of the protestors was defended in A. Craig Troxel and Peter J. Wallace, “Men in Combat over the Civil Law: ‘General Equity’ in WCF 19.4” Westminster Theological Journal 64 (2002), 307-318.
3 Thomas Shepherd, Theses Sabbaticæ, or, The doctrine of the Sabbath (Printed by T.R. and E.M. for John Rothwell ..., 1650; online by Ann Arbor, MI ; Oxford (UK) :: Text Creation Partnership, 2003-07, http:// name.umdl.umich.edu/A59693.0001.001), thesis 42.
4 A similar point was made by the New Haven Colony, which affirmed in 1642, “that the judicial law of God given by Moses and expounded in other parts of scripture, so far as it is a hedge and a fence to the moral law, and neither ceremonial nor typical nor had any reference to Canaan, hath an everlasting equity in it, and should be the rule of their proceedings.” Charles Hoadly, ed. Records of the Colony and Plantation of New Haven from 1638 to 1649 (Hartford: for the Editor, 1857), 69. The Puritans had more freedom to put this into practice in New England than in England.
5 Johannes Piscator, Disputations on the Judicial Laws of Moses, trans. Adam Jonathan Brink, ed. Joel McDurmon (Braselton, GA: American Vision, 2015 [1605]), 4-5.
6 Thomas Gilbert, Puritanism and Liberty, being the Army Debates (1647-9) from the Clarke Manuscripts with Supplementary Documents, (Indianapolis, IN: Liberty Fund, 2011, http://oll.libertyfund.org/title/2183), 199.
7 Quoted in Thomas Edwards, The Casting Down of the Last and Strongest Hold of Satan (London, Printed by T.R. and F.M. for George Calvert, 1647), 53-54. This passage from Edwards is quoted, and the quote from Alting is translated, in the appendix in Disputations on the Judicial Laws of Moses, 58-59.
8 Piscator, Disputations on the Judicial Laws of Moses, 52-67.
9 Samuel Bolton, The True Bounds of Christian Freedom (Carlisle, PA: Banner of Truth, 1964 [1645]), 56.
10 Ibid.
11 Gouge, Hebrews, second part, 149. Quoted in Timothy R. Cunningham, How Firm a Foundation? (Eugene, OR: Wipf and Stock, 2012), 162.
12 William Gouge, A commentary on the whole Epistle to the Hebrews, vol. II (Edinburgh: J. Nichol, 1866), 123.
13 Ibid.
14 Ibid.