JUDICIAL WARFARE
Christian Reconstruction and Its Blueprints For Dominion
by Greg Loren Durand

Chapter Thirteen:
Reconstructionism's Commitment to Mosaic Penology

       One of the most disturbing aspects of Reconstructionism is its stated goal to reinstate the penal sanctions of the Mosaic law. Under that system, the list of civil crimes which carried a death sentence went beyond murder to include homosexuality (Leviticus 20:13), adultery (Leviticus 20:10; Deuteronomy 22:22), incest (Leviticus 20:11, 14), lying about one's virginity (Deuteronomy 22:20-21), bestiality (Leviticus 20:15-16), witchcraft (Exodus 22:18; Leviticus 20:27), idolatry or apostasy (Leviticus 20:2; Deuteronomy 13:6-17), public blasphemy (Leviticus 24:10-16), false prophesying (Deuteronomy 13:5), kidnapping (Exodus 21:16), rape (Deuteronomy 22:25), and bearing false witness in a capital case (Deuteronomy 19:16-19). In each of these cases, the civil magistrate of the commonwealth was given the very same prohibition (either expressly or implicitly): "Thine eye shall not pity him" (Deuteronomy 19:13, 21).
       According to Greg Bahnsen, "the overall view of the civil magistrate according to Scripture (whether Older Testament, New Testament, Israelite or Gentile) has been found to be uniform and unchanged.... Thus the doctrine of the state presented by Paul in Romans 13 is a reaffirmation of the essential Older Testament conception of the civil magistrate" [emphasis in original].⁽¹⁾ On the surface, we can agree with this proposition: all magistrates are duty-bound by God to execute just laws which reflect His moral law for the good of the society over which they rule. However, Bahnsen meant much more than that, for the claim of Reconstructionism is that "'every jot and tittle' covers the numerous penal laws of the Older Testament just as it covers all else,"⁽²⁾ and that "this law is to be enforced by the civil magistrate where and how the stipulations of God so designate."⁽³⁾ The magistrate is therefore not free to substitute other forms of punishment such as imprisonment or fines in place of the death penalty or the other lesser penalties of the Mosaic code, and he rebels against God when he does so:

       Because all sin is defined by God, all sin must receive the punishments assigned by God, for this Judge will certainly do right. A smorgasbord approach to penology is just as wrong as personal selectivity in one's personal obedience to God's commandments. Thus, we should accept God's direction with respect to crime in order that our earthly magistrates maintain genuine justice and righteousness in society; otherwise, whether we want to be or not, we are afloat in a sea of autonomy. If the magistrate is to have direction from God, if the magistrate is to be limited in what he can legitimately do, and if there is to be any court of appeal above the magistrate to which the Christian can plead against abuse, then the magistrate should be seen as bound by the law of God and obligated to enforce it....
       ...[I]t is the clear duty of civil magistrates to duly enforce this law — not with their own estimates of proper penology, but with God's true and proper judgments. Then every crime will receive its perfectly equitable recompense; the magistrate, as God's minister for avenging wrath against evil-doers, does not have the right to enforce any other than a just penalty [emphasis in original].⁽⁴⁾

       Thus, Bahnsen concluded that "there is no cancellation of the death sentence for those crimes which are specified in the Older Testament...."⁽⁵⁾ In the words of Mark Rushdoony, son of R.J. Rushdoony, "The divorce problem will be solved in a society under God's law because any spouse guilty of capital crimes (adultery, homosexuality, Sabbath desecration, etc.) would be swiftly executed, thus freeing the other part to remarry.... Parents would be required to bring their incorrigible children before the judge and, if convicted, have them stoned to death."⁽⁶⁾ Like the younger Rushdoony, Gary North has insisted upon stoning as the "most covenantally valid form of execution,"⁽⁷⁾ which conclusion, though not uniformly held among the Reconstructionists, certainly would seem to follow from the premise that "every jot and tittle" of the Mosaic code is still valid and that "a smorgasbord approach to penology" is wrong. Stoning, after all, was the only form of execution prescribed in the Old Testament for capital crimes (Deuteronomy 17:7, 21:18).
       The main weakness of the Reconstructionists' argument lies in the fact that the nation of Israel was unique in world history as God's specially selected and covenanted people. For them, and for them alone, He legislated directly, adding specific laws and penalties to the already existing moral law (without supplanting it). His purpose for doing this was to keep the Israelites "shut up unto the faith which should afterwards be revealed" (Galatians 3:23). It should be remembered that the children of Israel had just spent four hundred years as residents of a pagan civilization, most of which time they were in bondage there as slaves. With few exceptions, they were themselves pagans at heart, as their constant backsliding into Baal-worship demonstrated, and a severe law-code was necessary to preserve the godly line through which Christ would come into the world. Thus, we are told in Chapter XIX:4 of the Westminster Confession that the "sundry judicial laws" given to Israel as "a body politic" have "expired together with the State of that people; not obliging any other now, further than the general equity thereof may require." Under the New Covenant there is no such "body politic," since God's spiritual Kingdom transcends all national, cultural, racial, and even linguistic boundaries. The only body for which God has legislated directly is the catholic (universal) Church, and all agree that that body only possesses the sanction of excommunication, not execution.
       The Westminster Confession deals a fatal blow at this point to the very heart of Reconstructionism, so it behooves us to take a closer look at the term general equity. Below are the definitions given to each word separately in a popular law dictionary:

       General. From Latin word genus. It relates to the whole kind, class, or order.... Pertaining to or designating the genus or class, as distinguished from that which characterizes the species or individual; universal, not particularized, as opposed to special; principal or central, as opposed to local; open or available to all, as opposed to select; obtaining commonly, or recognized universally, as opposed to particular; universal or unbounded, as opposed to limited; comprehending the whole or directed to the whole, as distinguished from anything applying to or designed for a portion only.⁽⁸⁾

         Equity. Justice administered according to fairness as contrasted with... strictly formulated rules.... The term "equity" denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men.... A system of jurisprudence collateral to, and in some respects independent of "law"; the object of which is to render the administration of justice more complete, by affording relief where the courts of law are incompetent to give it....⁽⁹⁾

       Thus, general equity is defined here as a universal standard of justice in contrast to the local, limited, or strictly formulated laws of a particular jurisdiction. The former transcends all political or national distinctions and binds all men alike, while the latter are enacted for a specific purpose or circumstance and are therefore unable to speak to the human race as a whole. Such is a "secular" definition of general equity. The historic Reformed definition is no different. John Calvin wrote:

       The judicial law, given [the Jews] as a kind of polity, delivered certain forms of equity and justice, by which they might live together innocently and quietly. And as that exercise in ceremonies properly pertained to the doctrine of piety, inasmuch as it kept the Jewish Church in the worship and religion of God, yet was still distinguishable from piety itself, so the judicial form, though it looked only to the best method of preserving that charity which is enjoined by the eternal law of God, was still something distinct from the precept of love itself. Therefore, as ceremonies might be abrogated without at all interfering with piety, so, also, when these judicial arrangements are removed, the duties and precepts of charity can still remain perpetual. But if it is true that each nation has been left at liberty to enact the laws which it judges to be beneficial, still these are always to be tested by the rule of charity, so that while they vary in form, they must proceed on the same principle....
       What I have said will become plain if we attend, as we ought, to two things connected with all laws — viz. the enactment of the law, and the equity on which the enactment is founded and rests. Equity, as it is natural, cannot be the same in all, and therefore ought to be proposed by all laws, according to the nature of the thing enacted. As constitutions have some circumstances on which they partly depend, there is nothing to prevent their diversity, provided they all alike aim at equity as their end. Now, as it is evident that the law of God which we call moral, is nothing else than the testimony of natural law, and of that conscience which God has engraven on the minds of men, the whole of this equity of which we now speak is prescribed in it. Hence it alone ought to be the aim, the rule, and the end of all laws. Wherever laws are formed after this rule, directed to this aim, and restricted to this end, there is no reason why they should be disapproved by us, however much they may differ from the Jewish law, or from each other (August. de Civit. Dei, Lib. xix.c.17).⁽¹⁰⁾

       Calvin's contemporary, Theodore Beza, likewise stated:

       Although we do not hold to the forms of the Mosaic polity, yet when such judicial laws prescribe equity in judgments, which is part of the decalogue, we, not being under obligation to them insofar as they were prescribed by Moses to only one people, are nevertheless bound to observe them to the extent that they embrace that general equity which should everywhere be in force.... The Lord commands that a deposit be returned, and that thieves be punished.... Because it follows natural equity, and expounds that perpetual precept of the decalogue, Thou shalt not steal, to this extent all are bound to fulfill them both. The thief is sentenced to make restitution for the theft, sometimes twice as much, sometimes four times as much.... This penalty is purely political, and it binds the one nation of the Israelites, to whom alone it was adapted. Therefore it is permitted for the magistrate, in his exercise of sovereignty and for definite and good causes, to prescribe a more severe manner of punishment.... And to be sure, if anyone compares several of the laws of the Greeks, and many of the laws of the Romans, with the Mosaic, he will find a similarity among them in establishing penalties, so that it is sufficiently plain that all were adapted to the same goal of natural equity.⁽¹¹⁾

       According to English Puritan William Perkins:

       Therefore the judicial laws of Moses according to the substance and scope thereof must be distinguished.... Some of them are laws of particular equity, some of common equity. Laws of particular equity, are such as prescribe justice according to the particular estate and condition of the Jews' Commonwealth and to the circumstances thereof.... Of this kind was the law, that the brother should raise up seed to his brother, and many such like: and none of them bind us, because they were framed and tempered to a particular people. Judicials of common equity, are such as are made according to the law or instinct of nature common to all men: and these in respect of their substance, bind the consciences not only of the Jews, but also of the Gentiles: for they were not given to the Jews as they were Jews, that is, a people received into the Covenant above all other nations, brought from Egypt to the land of Canaan,... but they were given to them as they were mortal men subject to the order and laws of nature as all other nations are.⁽¹²⁾

       The eminent Samuel Rutherford wrote, "Judicial laws may be judicial and Mosaical, and so not obligatory to us, according to the degree and quality of punishment.... No man but sees the punishment of theft is of common moral equity, and obligeth all nations, but the manner or degree of punishment is more positive: as to punish theft by restoring four oxen for the stealing of one ox, doth not so oblige all nations, but some other bodily punishment, as whipping, may be used against thieves."⁽¹³⁾ Elsewhere, he condemned the doctrine of Erastus on the Mosaic judicial laws, which was very similar, if not identical, to that of modern Reconstructionism:

       But sure Erastus erreth, who will have all such to be killed by the magistrate under the New Testament, because they were killed by him in the Old: Why, but then the whole judicial law of God shall oblige us Christians as Carolostadius and others teach? I humbly conceive that the putting of some to death in the Old Testament, as it was a punishment to them, so was it a mysterious teaching of us, how God hated such and such sins, and mysteries of that kind are gone with other shadows. "But we read not" (saith Erastus) "where Christ hath changed those laws in the New Testament." It is true, Christ hath not said in particular, I abolish the debarring of the leper seven days, and he that is thus and thus unclean shall be separated till the evening; nor hath he said particularly of every carnal ordinance and judicial law, it is abolished.
       But we conceive, the whole bulk of the judicial law, as judicial, and as it concerned the Republic of the Jews only, is abolished, though the moral equity of all those be not abolished; also some punishments were merely symbolical, to teach the detestation of such a vice, as the boring with an aul the ear of him that loved his master, and desired still to serve him, and the making of him his perpetual servant. I should think the punishing with death the man that gathered sticks on the Sabbath was such; and in all these, the punishing of a sin against the Moral Law by the magistrate, is moral and perpetual; but the punishing of every sin against the Moral Law, tali modo, so and so, with death, with spitting on the face: I much doubt if these punishments in particular, and in their positive determination to the people of the Jews, be moral and perpetual: As he that would marry a captive woman of another religion, is to cause her first to pare her nails, and wash herself, and give her a month, or less time to mourn the death of her parents, which was a judicial, not a ceremonial law; that this should be perpetual because Christ in particular hath not abolished it, to me seems most unjust; for as Paul saith, He that is circumcised becomes debtor to the whole law, sure to all the ceremonies of Moses his law: So I argue, a peri, from the like: He that will keep one judicial law, because judicial and given by Moses, becometh debtor to keep the whole judicial law under pain of God's eternal wrath.⁽¹⁴⁾

       Such quotations from Reformed authorities of the past could be multiplied a hundredfold, but those cited above should be sufficient to clarify what the Westminster Confession is teaching at Chapter XIX:4. In stating that the judicial laws are no longer binding "further than the general equity thereof may require," the Confession is clearly pointing to the universal principles of the moral or natural law, rather than the particular statutes of the Mosaic code, as the standard to which magistrates are bound. Indeed, the entire chapter of the Confession in which this phrase appears deals with the moral law which "doth for ever bind all, as well justified persons as others, to the obedience thereof; and that, not only in regard of the matter contained in it, but also in respect of the authority of God the Creator, who gave it...."⁽¹⁵⁾ Thus, whatever is of general equity is that which agrees with the moral law and is equally applicable to all men without distinction.
       There is no way for the Reconstructionists to escape the fact that they are at odds with the entire Reformed tradition of the law at this point. We have already seen that Rushdoony accused Calvin of teaching "heretical nonsense" in his doctrine of general equity, so it should come as no surprise that his opinion of the Westminster divines was not much different. Referring to the above section of the Confession, he bluntly stated, "At this point the Confession is guilty of nonsense."⁽¹⁶⁾ Other Reconstructionists, such as Greg Bahnsen, have preferred to be less obvious in their rejection of the doctrine of the Confession:

       The New Testament teaches us that — unless exceptions are revealed elsewhere — every Old Testament commandment is binding, even as the standard of justice for all magistrates (Rom. 13:1-4), including every recompense stipulated for civil offenses in the law of Moses (Heb. 2:2). From the New Testament alone we learn that we must take as our operating presumption that any Old Testament penal requirement is binding today on all civil magistrates. The presumption can surely be modified by definite, revealed teaching in the Scripture, but in the absence of such qualifications or changes, any Old Testament penal sanction we have in mind would be morally obligatory for civil rulers....
       [A]s I read it, the Bible does not teach the temporary use of the penal sanctions.... [emphasis in original].⁽¹⁷⁾

       Just as Bahnsen's "every jot and tittle" argument falls apart upon close examination, so does his argument here. First of all, his citation of Romans 13:1-4 does nothing to prove his thesis, since this passage merely sets forth the doctrine of the civil magistrate as "God's minister" to whom the authority is given to "bear the sword" against "him that doeth evil." There is nothing in the text to support Bahnsen's assumption that the laws from which the magistrate derives his authority to rule are the specific judicial laws of the Old Testament. If such were the case, very few rulers in the history of the world would qualify as "God's minister." Instead, as we have seen, the magistrate is the appointed guardian of society on the basis of the moral or natural law to which all mankind is bound. This conclusion is substantiated by 1 Peter 2:13-14, which similarly commands Christians to "submit yourselves to every ordinance of man for the Lord's sake: whether it be to the king, as supreme; or unto governors, as unto them that are sent by him for the punishment of evildoers, and for the praise of them that do well." Rather than calling them to establish a neo-Mosaic theocracy, the Apostle intended God's "peculiar people" (verse 9) to see themselves as "strangers and pilgrims" (verse 11) in this world, and therefore strive to have their "conversation honest among the Gentiles" (verse 12). To use Augustine's previously quoted metaphor, "the city of God" temporarily resides in the midst of "the city of man," and the members thereof must not misconstrue their eternal standing before God as an exemption from temporal submission to earthly rulers, even though the latter may be heathen (verse 16). Paul's doctrine in Romans 13:1-4 is no different, despite Bahnsen's misuse of the passage.
       Bahnsen also cited Hebrews 2:2: "For if the word spoken by angels was stedfast, and every transgression and disobedience received a just recompense of reward; [here Bahnsen wished his readers to stop, but we must finish the writer's thought in the next verse] how shall we escape so great salvation; which at the first began to be spoken by the Lord, and was confirmed unto us by them that heard him?" A cross-reference of this verse to Galatians 3:19 will show the fallacy of using it as a prooftext for the perpetuity of the civil laws: "Wherefore then serveth the law? It was added because of transgressions, till the seed should come to whom the promise was made; and it was ordained by angels in the hand of a mediator." The entire book of Hebrews was a solemn warning to those Jews of the First Century who were in danger of apostatizing back into the law after becoming acquainted with the Gospel of Christ. The inspired writer was simply showing how much more severe will be the penalty to those who neglect the Gospel, attested to by God's Son Himself, than that which attended violations of the Mosaic law, which was merely "ordained by angels." Arthur W. Pink wrote:

       While it is true that salvation is not only announced, but is also secured to and effectuated in God's elect by the Holy Spirit, yet it must not be forgotten that the Gospel addresses the moral responsibility of those to whom it comes. There is not only an effectual call, but a general one, which is made unto "the sons of men" (Prov. 8:4). The Gospel is for the sinner's acceptance, see 1 Tim. 1:15; 2 Cor. 11:4! The Gospel is more than a publication of good news, more than an invitation for burdened souls to come to Christ for relief and peace. In its first address to those who hear, it is a Divine mandate, an authoritative command, which is disregarded at the sinner's imminent peril. That it does issue a "command" is clear from Acts 17:30, Rom. 16:25, 26. That disobedience to this "command" will be punished, is clear from John 3:18, 1 Peter 4:17, 2 Thess. 1:8 [emphasis in original].⁽¹⁸⁾

       That the apostolic writer was not arguing for the continuing force of the civil law is established by his statement that it "was [not is] stedfast"; it was "firm, of force... [and] sure"⁽¹⁹⁾ for the purpose for which it was instituted — "because of transgressions" — and for the timeframe in which God intended it to continue — "till the seed should come to whom the promise was made." As we have seen from 2 Corinthians 3:6-13, the Mosaic law, or "the ministration of death," has passed away, while the Gospel, or "the ministration of righteousness," remains forever. Thus, Bahnsen's alleged "proof text" actually disproves his theory, rather than supports it. While civil magistrates are certainly bound to believe and obey the Gospel, as are all men of whatever station in life, there is no command given here for them to enforce the "sundry judicial laws" which have "expired together" with the commonwealth of Israel.
       Does the New Testament then support Bahnsen's "operating presumption" that all Old Testament penal laws are still valid unless specifically repealed? It certainly does not. In addressing the Corinthian Christians, Paul wrote, "Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God. And such were some of you: but ye are washed, but ye are sanctified, but ye are justified in the name of the Lord Jesus, and by the Spirit of our God" (1 Corinthians 6:9-11). Most of the sins listed in this passage were capital crimes under the Mosaic code, and yet Paul said nothing here about execution. The Reconstructionists will answer that Paul was dealing with ecclesiastical matters, and since the Church does not have the power of the sword, his silence was appropriate.⁽²⁰⁾ However, this explanation does not take into account that, according to the penology of Reconstructionism, the Roman government did have the power of the sword and was obligated to execute such people according to the Mosaic code. Why then did Paul not contact the authorities and have these people arrested? After all, the penal law of the Old Testament was pitiless in its demand for the death penalty for these crimes, notwithstanding the repentance and spiritual regeneration of the perpetrator: "Thine eye shall not pity him." It should be noted that the people to whom Paul wrote his epistle were all within the jurisdiction of the Roman government. The fact that they were still alive and well indicates that the State was not, in fact, enforcing the penal sanctions of the Mosaic code. How then could Paul turn around and declare this same State to be "God's minister" in Romans 13 if the magistrate "does not have the right to enforce any other than a just penalty" — i.e., the specific sanctions of the Old Testament? What should we think of a government which executes violent criminals by lethal injection rather than by stoning, as demanded by Gary North? What about a police officer who issues a citation to a motorist for expired registration or failure to maintain insurance on his vehicle — both offenses unknown to the Mosaic code? Do such magistrates lose their status as "ministers of God" because of their "smorgasbord approach to penology"? How should a court proceed against a computer hacker and what penalty should be imposed upon conviction? What penalty should be imposed for identity theft? For child pornography? For the sale or possession of illegal drugs? For indecent exposure? Is a convicted car thief required to restore five cars, or just four, to his victim? In attempting to apply a law code designed for an agrarian people four thousand years ago to the highly technological society of the modern world, Reconstructionism raises many more questions than it claims to answer. In the final analysis, the Reconstructionists themselves are forced to admit that modern governments may adapt the principles of the Mosaic law to their respective circumstances,⁽²¹⁾ which is essentially the same position taken by the non-Reconstructionist who looks beyond the Mosaic code to the moral law of God for his ethical standard. Again, the Reformed view of the civil magistrate allows for a wide range of diversity in applying the moral law to each jurisdiction, for the social and political needs of the nations of the world differ from one another to such an extent as do their cultures. "How malignant it were," wrote John Calvin, "and invidious of the public good, to be offended at this diversity, which is admirably adapted to retain the observance of the divine law."⁽²²⁾

Endnotes

1. Bahnsen, Theonomy in Christian Ethics, page 398.

2. Bahnsen, ibid., page 467.

3. Bahnsen, ibid., page 34.

4. Bahnsen, ibid., page 466.

5. Bahnsen, ibid.

6. Mark Rushdoony, The Chalcedon Report #252 (1986).

7. Gary North wrote, "Public stoning forces citizens to face the reality of the ultimate civil sanction, execution, which in turn points to God's ultimate sanction at judgment day. Stoning also faithfully images the promised judgment against Satan: the crushing of his head by the promised Seed" (Tools of Dominion, page 44).

8. Black's Law Dictionary (Saint Paul, Minnesota: West Publishing Company, 1991; Sixth Edition), page 682.

9. Ibid., page 540.

10. Calvin, Institutes of the Christian Religion, Book IV, Chapter XX:15, 16.

11. Theodore Beza, De Haereticis a Civili Magistratu Puniendis Libellus (Geneva, Switzerland: Robert Stephanus, 1554), pages 222-223.

12. William Perkins, A Discourse of Conscience (Cambridge: J. Legat, 1596), Book I, page 514.

13. Samuel Rutherford, A Free Disputation Against Pretended Liberty of Conscience (London: Andrew Crook, 1649), pages 298-299.

14. Rutherford, Divine Right of Church Government (London: John Field, 1646), pages 493-494.

15. Westminster Confession, Chapter XIX:5.

16. Rushdoony, Institutes of Biblical Law, page 551.

17. Greg L. Bahnsen, No Other Standard (Tyler, Texas: Institute for Christian Economics, 1991), pages 68, 252.

18. Arthur W. Pink, An Exposition of Hebrews (Grand Rapids, Michigan: Baker Book House, 1954), page 88.

19. James Strong, A Concise Dictionary of the Words in the Greek Testament (Maclean, Virginia: MacDonald Publishing Company, n.d.), page 18.

20. DeMar, essay: "The Sorry State of Christian Scholarship," in North, Theonomy: An Informed Response, page 351 (footnote).

21. North, Tools of Dominion, page 49; North, Theonomy, An Informed Response, page 293.

22. Calvin, Institutes of the Christian Religion, Book IV, Chapter XX:16.