Right and Wrong
God, Law, and the Secular State
Paul F. Niehaus and Jeffrey J. Niehaus


Christians may believe in the same God, but they do not agree about the proper way to apply God’s standards in the modern state. Another way of saying this might be that they do not agree about politics. The phrase “religious right” has achieved common usage in politics. There is also a religious, and a Christian, “left.” Opinion polls show significant heterogeneity of opinion on political views among Christians in the United States. (1) The labels “left” and “right” do not adequately represent this heterogeneity, but their use at least illustrates that diversity of opinion exists.

We are interested not in the fact that Christians disagree about politics, but rather in the ways that they reason to their conclusions. How do we judge what is right and what is wrong? What are the appropriate Biblical foundations for political conclusions? Intuitively, one might think about political issues by comparison to ethical ones. One Christian might notice that prostitution is sinful and reason that it should be illegal. Another Christian might notice that Christ commanded us to give generously to those in need, and reason that the government should provide for the poor.

This example illustrates that the same kind of thinking can lead to political positions on both the “right” and the “left.” We want to reemphasize that our interest here is with the “kind of thinking” and not with the positions. The thinking in this example centers on the relationship between sin and the law. Prostitution is sinful, hence illegal. More subtly, it is sinful for a rich man not to help the poor, so the government effectively requires that he do so. In both cases, sinfulness implies illegality. Is this reasoning valid? Should a Christian who thinks this way extend the reasoning to all sins? Should cursing be illegal? What about lustful thoughts?

We have thus arrived at the following question: which sins should be legal, and which sins should be illegal? This question matters because it follows from a line of reasoning that is intuitively appealing. This question was also a starting point for another influential Christian political commentator, Thomas Aquinas (below). We propose to take up this question and to identify Biblical foundations for answering it.

Thomas Aquinas takes up the question of sin and the law in the Summa Theologica: “does it belong to the human law to repress all vices?” Aquinas believes that the purpose of human laws is to lead men gradually to virtuous living. Since all men are sinful, human laws do not forbid all vices, “but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others.” Aquinas draws an analogy between these criteria for lawmaking and the parable of the wineskins. (Matt. 9:17) A sinful citizenry can be seen as an old wineskin which would burst under the pressure of strict laws – the new wine. (2)

To give Aquinas his due would require more space, but clearly he takes a pragmatic approach. Aquinas would ban those vices that are grievous and harm others. This seems practical, but Aquinas does not show that it follows from an understanding of God’s nature. We do not discount pragmatic considerations – surely God’s will is pragmatic in the strongest sense of the word – but human pragmatism is not an accurate guide to God’s will.

We want to address the question of sin and the law with explicitly Biblical methods. In doing so, we must avoid the pitfall of “proof-texting.” Such an approach would look through the Bible for individual passages which address the topic at hand, and use them as proofs. For example, Christian scholars Ronald Nash and Eric Beversluis debated economic policy with repeated references to Old Testament passages about justice. They disagreed sharply on the interpretation of Exodus 22:26-27: “If you take your neighbor’s cloak as a pledge, return it to him by sunset, because his cloak is the only covering he has for his body...” Beversluis uses this passage to argue for state provision of necessities. Nash accuses Beversluis of proof-texting, and also argues that “if Exodus 22 contains a list of duties for any just state, then one must conclude that the contemporary state has a duty to execute witches, sex perverts, and idolaters.” (3) This is rhetorically effective, but hardly puts to rest the question of economic entitlements. Instead, it opens a Pandora’s Box of other, more daunting questions. Should the modern state execute idolaters? If not, why? Surely we need a broader understanding of the context in which these laws were given. It is precisely the lack of such a systematic framework that limits the Nash-Beversluis debate.

What we want, then, is a way of thinking about justice that is Biblical, not because it rests on Bible verses, but because it rests on an understanding of the Bible as a whole. Thus we will begin our argument by discussing the authority of Scripture, and why understanding “the Bible as a whole” is possible. (4) We will then present Biblical evidence showing that in this modern age God is still concerned with the laws of nations, even though the New Testament scarcely touches on legal matters. This leads us naturally to an examination of the Old Testament law. We will place a special emphasis on the Law as a covenant, as one part of the covenant-history between God and man. From the covenantal form, we will infer that Biblically just laws should respect the moral capabilities of a nation’s citizens.

We end our discussion of the Old Testament law with a comment on the practical considerations involved in “translating” ancient policies into modern ones. We then turn forward to the New Testament for a brief consideration of the Church – the new form of God’s kingdom which replaces the political state of Israel. We see the Church taking responsibility for some areas of sin which were the domain of the state under the Old Covenant.

Also, for reasons that will become clear below, we provisionally define justice to be that which is in accord with the will of God.


THE AUTHORITY OF SCRIPTURE


As Christians, we take the Old Testament as authoritative. We will discuss reasons for taking this view because it is basic to our study. But more generally, we urge anyone reading about justice in the Old Testament not to shy away from reading, understanding, and applying any portion of the text. This view seems harmless enough until the text under consideration says something unpleasant, and then it binds: “Anyone who curses his father or mother must be put to death.” (Ex. 21:17) Indeed, as Nash pointed out, the Mosaic law prescribes the death penalty for a broad range of crimes. Some Christians find these passages anachronistic. How could the “God of the New Testament” possibly give such instructions? Could this be the revealed Word of the God who became incarnate in Christ Jesus, the God who told us to love our enemies, and pray for those who persecute us? And thus, could these texts have any authority over Christians?

From Scripture the resounding answer to these questions is yes. Paul writes, “All Scripture is God-breathed and is useful for teaching, rebuking, correcting and training in righteousness, so that the man of God may be thoroughly equipped for every good work.” (2 Timothy 3:16-17) The Scripture which served as a common reference for Paul and Timothy was that of the Jewish people, our Old Testament. And its quality of being God-breathed implies not only usefulness for the stated purposes, but essential identity with the breath, or Spirit, of God. So Jesus can say, “The words I have spoken to you are Spirit, and they are life” (Jn 6:63), and, consequently, He can say to His Father “Your word is truth” (Jn 17:17).

The life and teaching of our Lord confirm the authority of Scripture. As Millard Erickson points out, Jesus’ repeated disputations with the Pharisees contain criticism of their interpretation of Scripture, but with underlying recognition of its authority. (5) He told his disciples, “I tell you the truth, until heaven and earth disappear, not the smallest letter, not the least stroke of a pen, will by any means disappear from the Law until everything is accomplished.” (Matt. 5:18) The Christ who taught us to love our enemies is also the Christ who held the Old Testament law to be authoritative. The “God of the Old Testament” and the “God of the New Testament” are identical and inseparable.

This would seem to leave no room for a “pick-and-choose” reading of Scripture. Such a reading selects and emphasizes passages that fit with the reader’s preconceptions and desires, while excluding or de-emphasizing passages which are a source of discomfort. Why might we be tempted to adopt such an approach? First, because the Bible’s normative teaching may conflict with our innate sense of right and wrong. Second, because even though we accept the Biblical truth we may feel embarrassed to express it or act on it publicly.

Both temptations must be resisted. Quite simply, where the Bible explicitly contradicts our own views, we are wrong and the Bible is right. To think otherwise would deny God’s authority and reduce the study of Scripture to an exercise in self-validation. Similarly for the opinions of our peers; we know that “the wisdom of this world is foolishness in God’s sight” (1 Cor. 3:19) and that “the foolishness of God is wiser than man’s wisdom” (1 Cor. 1:25) so that in faith we consider Scripture the higher authority.

We will proceed with the understanding that the Old Testament law is authoritative. If any part thereof seems an embarrassment, we remember Christ’s words: “If anyone is ashamed of me and my words in this adulterous and sinful generation, the Son of Man will be ashamed of him when he comes in his Father's glory with the holy angels.” (Mark 8:38) We are looking for a notion of justice of which the Father would approve, and so we must rely on His words. As for those passages that give us pause, the inquiry into moral capabilities which follows may help us understand them.


T HE GOD OF JUSTICE


At the outset we posed the question, "Which sins should be legal, and which should be illegal?" We now rephrase this question slightly, to read, "Concerning which sins does God want us to make laws, and concerning which sins does He not want us to make laws” (leaving open the possibilities “all” and “none”). Although this may seem a trivial rewording, it forces us to focus on Biblical evidence about God's will rather than on human intuitions.

Jeremiah 18 makes it clear that God cares about the conduct of nations and kingdoms that are only under common grace, that is, nations and kingdoms not in a special redemptive covenant relationship with God. Jeremiah 18:1-10 reads as follows:

“This is the word that came to Jeremiah from the LORD: ‘Go down to the potter's house, and there I will give you my message.’ So I went down to the potter's house, and I saw him working at the wheel. But the pot he was shaping from the clay was marred in his hands; so the potter formed it into another pot, shaping it as seemed best to him. Then the word of the LORD came to me: ‘O house of Israel, can I not do with you as this potter does?’ declares the LORD. ‘Like clay in the hand of the potter, so are you in my hand, O house of Israel. If at any time I announce that a nation or kingdom is to be uprooted, torn down and destroyed, and if that nation I warned repents of its evil, then I will relent and not inflict on it the disaster I had planned. And if at another time I announce that a nation or kingdom is to be built up and planted, and if it does evil in my sight and does not obey me, then I will reconsider the good I had intended to do for it.’”

God’s word to his prophet makes it clear that God judges all nations and kingdoms according to their behavior. It is worth note that God speaks in universal terms: “a (i.e., any) nation or kingdom,” not Israel only. It is also worth note that God sets no temporal constraints on this activity of divine judgment. Abraham called God “the Judge of all the earth” just before He judged Sodom and Gomorrah (Gen 18:25), God was still “Judge of all the earth” in Jeremiah’s day, and He is still so today. He judged Sodom and Gomorrah for their behavior then, He judged nations and kingdoms in Jeremiah’s day, and will continue to do so until the end of the age. Nothing in the New Testament contradicts or supercedes this theodicy, for reasons which will appear below. To sum up with regard to Jeremiah 18, however: God judges nations in the flow of history, and He judges them for their behavior. Good laws can encourage good behavior, of course, and had Israel obeyed God’s laws, it would have been a testimony to the nations. (6) But, after all, the way to avoid divine judgment as a nation is not simply to craft good laws! Rather, God considers the heart and soul of a nation, so to speak: He weighs the hearts and souls of the people who make up the nation. And God is no fool. He can know the hearts and souls of people both because no one can keep such things hidden from God (Heb 4:13), and also because people make their hearts known by their words and deeds (Matt 12:33-37, 15:19-20). So, on the basis of such manifest proofs, i.e., on the basis of behavior, God judges the nations of the earth.

Anyone who carefully reads the Old Testament and the New Testament will soon notice that the New Testament does not have much to say about God’s dealing with nations within history. The reason lies in the form of God’s Kingdom in each Testament.

The New Covenant form of the Kingdom is different from the Old Covenant form. The New Covenant form of the Kingdom is the church, and so the New Covenant has a more focused emphasis upon individuals in their relationship to God and in the church, rather than upon kingdoms or nations. On the other hand, the Old Testament, in which the form of the Kingdom is a nation state, has much more to do with nation states. God judges a nation (Egypt) in order to liberate His people. He judges nations (“the Kenites, Kenizzites, Kadmonites, Hittites, Perizzites, Rephaites, Amorites, Canaanites, Girgashites and Jebusites” Gen 15:18-20) in order to establish His Kingdom in Canaan, and throughout the history of Israel, from the Judges period through the United Monarchy until the fall of the Northern Kingdom to Assyria and the fall of the Southern Kingdom to Babylon, we find God dealing with his Kingdom in terms of the nations and kingdoms round about, and we find him judging those nations and kingdoms as well. The Old Testament form of the Kingdom means that we see God dealing with that Kingdom, and with other kingdoms in relation to it, as a matter of course. So we most naturally turn to the Old Testament to learn what God has to say about Himself and His standards vis-à-vis “a [any] nation or kingdom” (Jer 18:7).

As we saw from Jeremiah 18, God judges nations according to their behavior. So, it behooves a nation to behave well. That is, it is good for a nation if its people have good values and, presumably, good laws that reflect and maintain them. In a democracy, we have unusual freedom to make or change our laws. So, in a democracy such as ours, laws may change considerably as the character of the people changes and the people seek to frame laws in keeping with their character. If the character of the people is improving, this is good. If their character is growing worse, however, it is bad.

How can we know whether a people’s character is good or bad? Since God has given us His word, which is truth (John 17:17), we can determine this from the Bible. We can apply that knowledge to what we observe in the character of a people. Moreover, since God has given laws for the Old Testament form of the Kingdom (a nation state), we can study those as prime examples of good laws.

Our purpose acknowledges God’s aims in providing laws for His people. God gave laws in order to accomplish (at least) two things: to supply a body of legal standards and constraints, just as laws do in any state, and to provide a lesson in justification, namely, that no one can be justified by works of law. The history of Israel, which was one of repeated covenant breaking and judgment, strongly suggested this latter truth. But the Sermon on the Mount established it beyond all doubt. Now, as we acknowledge these facts, we also purpose to accomplish something different on the basis of the Mosaic law.


COVENANT HISTORY

We look to the Mosaic law as an example, or possible standard, of just laws for a just secular state. This law was given in a covenant that constituted a state (ancient Israel). But the Mosaic Covenant was one of a series of five major covenants in the Old Testament. God used those covenants to forward His plan of redemption, and also showed thereby that he is a God of covenants.

God’s first covenant was the Adamic Covenant, which God enters into with Adam and Eve, making them rulers over earth (Gen 1:1-2:3). (7) When His vassals break that covenant, God graciously reconfirms their ruler status (part of the significance of clothing them, Gen 3:21), and gives them the promise of the "Protoevangelium" (Gen 3:15). He also carries out the death penalty upon them, as He must in order to be true to His covenant curse (Gen 2:17b) and consistent with His own holiness and truth.

As sin abounded on earth, God pronounced judgment upon all humanity. He spared only Noah (who was righteous and "walked with God," Gen 6:9) and his family. Once that judgment was over, God made a covenant with Noah (Genesis 9). That Noahic Covenant was a re-creation covenant, i.e., a reestablishment of the Adamic covenant, as the repeated terms indicate (Gen 1:28-29 // Gen 9:1-3). The Noahic covenant thus gave humanity a fresh start, as it were, with God as Suzerain over a humanity called to live in obedience to him.

But humanity chose not to do so. That choice, of course, was a sum of myriad individual choices made by increasing numbers of people over many years. Through sin people lost the knowledge of God and degenerated into polytheism with its invariably concomitant sexual sins (cf. Rom 1:20-32). Out of such a polytheistic context God called Abram (Gen 12:1-3, cf. Josh 24:2). God made a covenant with him, and that covenant was the genesis of the two great covenants that are most familiar to us.

The Abrahamic Covenant anticipates both the Mosaic covenant and the New Covenant in Christ's blood, as Genesis 15 makes clear. It anticipates the Mosaic covenant and the Exodus from Egypt by declaring that the Lord would lead Abram's descendants out of the land that oppressed them (Gen 15:13-14) and back to the promised land to dispossess its inhabitants (Gen 15:18-21). It anticipates the New Covenant which would replace the Mosaic covenant, because God Himself makes the passage between the sacrificed animals (Gen 15:17). Normally in ancient near eastern treaties, the vassal would make that oath passage (cf. Jer 34:18), which symbolized the punishment to befall the vassal should he break the covenant. In Gen 15:17, however, God in theophany ("a smoking firepot with a blazing torch," Gen 15:17) makes that passage. By doing so, He symbolically declares that He will take the punishment for any covenant-breaking by Abram and his seed. And Christians are Abraham's seed: "If you belong to Christ, then you are Abraham's seed, and heirs according to the promise" (Gal 3:29). So, the Abrahamic Covenant anticipates both the Mosaic Covenant and the New Covenant which replaces it.

After the Mosaic covenant there is one final, major covenant in the OT: the Davidic Covenant (2 Sam 7:1-17). But the Davidic Covenant does not replace the Mosaic; only the New Covenant does that. The Davidic Covenant, rather, is a special covenant focused on the royal Davidic succession, which eventuates in Christ. David himself did not mediate a new covenant with new laws and a new form of the kingdom for all of God's people. Only Jesus did that. Rather, David himself was still under the Mosaic Covenant, and paid for violating it when he committed adultery with Bathsheba.


MORAL CAPABILITY

Now that we have embedded the Old Testament law in covenant-history, we are prepared to assess the significance of the covenantal vehicle for law-giving.

The essence of a covenant is mutual agreement. Before the covenant binds, everyone must consent to the terms. Subsequently, the justice of a person’s actions in the context of the covenant is a function of their conformity to the standards of the covenant. Thus, as we saw above, David was judged and punished under the Mosaic covenant; Israel’s repeated dalliances with idolatry and sexual immorality were judged and punished under the same covenant. God’s punishment was just because it was prescribed by the covenant. We have taken great pains to cover all of covenant-history because taken as a whole it illustrates this pattern consistently. Humans agree, implicitly or explicitly, to terms. When they violate those terms, God punishes them either directly or through his agents. When they fulfill those terms, God rewards them. God fulfills his promises, binding himself to the terms of the covenant, faithfully executing everything he committed to do. Neither punishment nor reward is arbitrary because both are established by the covenant.

Thus, when we start to think about laws established by covenants, we might hear echoes of the secular contractarian tradition. Social contract theories rest on an idea that is intuitively appealing: it is fair to hold people accountable to terms to which they have already consented. (8) But any secular contract can at best be an imperfect reflection or partial embodiment of the truth, which is God’s will. (9) Any merit attributable to social contract theories is the result of their imperfect reflection of truths that God has revealed through the use of the covenantal form. One of these truths is that God’s historical interaction with us is on terms to which we consent.

Since God is almighty, it might seem that human consent to a covenant is a mere formality. Perhaps no one would use the word “exploitation” due to its negative connotations. But in the sense that exploitation involves agreements that are formally voluntary but in reality coercive because of an imbalance of power between the parties, the covenants seem strong candidates for the label. Where does a greater power difference exist than between God and man? Yet we have seen that in the Abrahamic covenant God symbolically assumes the role of the vassal rather than the suzerain, playing the weaker part. More generally, through the entire sequence of covenants, evidence for coercion is entirely lacking. At the landmark events in God’s historical work, the human parties involved were free to say “no”.

God’s covenant dealings with His people through Moses and Joshua illustrate this truth. Moses challenged Israel to choose God and His law: “This day I call heaven and earth as witnesses against you that I have set before you life and death, blessings and curses. Now choose life, so that you and your children may live” (Dt 30:19; cf. Ex 19:8). Joshua likewise challenged them, “But if serving the LORD seems undesirable to you, then choose for yourselves this day whom you will serve, whether the gods your forefathers served beyond the River, or the gods of the Amorites, in whose land you are living. But as for me and my household, we will serve the LORD" (Josh 24:15; cf. 1 Kgs 18:21). (10) The people in both cases chose the LORD. Afterwards, when citizens were punished for their individual crimes, and when Israel as a whole was punished for its collective misbehavior, the punishment was not a response to their fallen, sinful condition (in which all people participate, Rom 3:23), but a response to sins they chose to commit - sins that violated the covenant they had elected to enter.

As we observed, God did not punish Israelites for their sinful condition, but for covenant-breaking sins (which we might call crimes) under Mosaic law. But even those specified sins (or “crimes”) implied the deeper and more pervasive sinfulness of people. The New Testament affirms the same. Christ repeatedly used the construction “you have heard that it was said / but I tell you” to distinguish between the sin (as defined by the Mosaic law), and the underlying sinful motivation (not addressed by the Mosaic law). Moreover, the law of Moses judged covenant-breaking sins during one’s lifetime. But all sin is ultimately judged at the final judgment. The writer to the Hebrews observes that “anyone who rejected the law of Moses died without mercy on the testimony of two or three witnesses.” (Heb. 10:28). This is legal punishment, within time. He then says, “How much more severely do you think a man deserves to be punished who has trampled the Son of God under foot, who has treated as an unholy thing the blood of the covenant that sanctified him, and who has insulted the Spirit of grace?” (Heb. 10:29) This is final punishment, at the end of time.

In sum: the Old Testament law, though one of its chief functions was to illustrate to humanity the unattainability of God’s high standards, still did not cover all sins. This justifies the question we posed: “concerning which sins does God want us to make laws, and concerning which sins does He not want us to make laws?” It also suggests that all sins is the wrong answer; legal penalties should not be attached to sins simply because they are sins. How then can we distinguish among sins? We have seen that God’s actions with respect to law and punishment are uniformly consistent with his will that human beings be capable of making meaningful moral choices – having what we will call “moral capability.” Based on this observation, we propose that the laws should be consistent with God’s general pattern of giving human beings the capability to make meaningful moral choices.

We need to be quite clear about what is expected from this principle. We do not see it as a sufficient basis for lawmaking. We do see it as necessary to thinking about Biblical justice. It is founded on a very basic observation about God in his role as lawgiver and as the final judge between right and wrong. And the capability principle has strong implications for the nature of just laws.

Take the case of murder. From a Biblical standpoint, murder is sinful because God does not will it, and this because we are each made in His image. In addition, to allow murder would run against our principle of moral capability. Murder is a willed choice made by the murderer, but it robs the victim of significantly greater moral agency. Therefore, the capability principle suggests that penalties attached to murder are just deterrents. They restrict would-be murderers slightly in order to preserve the capabilities of potential victims – the capabilities to choose right and wrong, the capability to choose God.

We previously looked at a Mosaic law proscribing the death penalty for those who curse their parents. Cursing at parents is still sinful today. But, setting aside the nature of the penalty, should cursing one’s parents be illegal today? To ban such cursing would unambiguously reduce the moral capabilities of children. Thus the presumption under the capability principle is that legislation which penalized cursing would be unjust. This does not contradict the fact that cursing was illegal in ancient Israel; indeed nothing in the Old Testament law violates our criterion precisely because that law was explicitly and entirely accepted by Israel at Sinai.

According to the traditional Biblical interpretation, homosexual intercourse is sinful because it contradicts God’s express intent that sexual relations should be between married men and women. Is legal circumscription in this case just? Again, prohibiting homosexual acts would unambiguously reduce the moral capability of the citizens. The presumption under the capability principle is therefore that legislation penalizing homosexual acts would be unjust. For the reasons just discussed, this does not contradict the fact that homosexual intercourse was a mortal crime in the Old Testament law.

The above examples suggest that the legislative process matters for the justice of the outcomes. We agree. A full treatment of process and moral capability is beyond our present scope. We do observe in passing, however, that the covenantal process sets a very high bar of unanimous consent. (11)

We want to emphasize that the moral capability, “the capability to make meaningful moral choices,” which we discuss is not a Christianized notion of “freedom.” First, the secular concept of freedom suffers from competing definitions, making it somewhat nebulous. Second, freedom as the absence of coercion, which we might call a baseline definition, diverges from the moral capabilities we are discussing in important ways. Consider my handicapped neighbor; we live under the same state and enjoy the same legal freedoms, but I am far more capable. In particular, imagine that we both witness an assault in progress. I must decide whether or not to put myself at risk and intervene. My handicapped neighbor is not capable of intervening, and so is not put to the same test. I must make a decision which will be either right or wrong; my neighbor is not capable of making this decision. In this sense I am more capable of right or wrong than he is, and this is the moral capability of which we speak. It is generally true that the mere absence of coercion does not imply that a man is capable of making significant moral decisions. (12)

The distinction between capability and “freedom” also matters on theological grounds.
Our emphasis on moral capabilities is based on the whole Biblical evidence of God’s actions vis-à-vis mankind. This is not an argument for Christian freedom based on the ontological concept of free will. Free will is a controversial idea because of seemingly contrary evidence for predestination. Rather than engaging this higher theological question, we want to stress the Biblical evidence that God always offers his people a choice to obey him or to disobey.


MODERNIZING POLICY

We have explored the pertinence of covenant-history to a political question: concerning which sins does God want us to make laws, and concerning which sins does He not want us to make laws? We wish to close on a pragmatic note. Identifying a sin as one that the law should proscribe is a first step. There remains the question of how to proscribe a sin. What actual, measurable behaviors should be legally required or prohibited? How should the law be administered? What penalties should apply?

We saw earlier that the only detailed discussion of laws in the Bible is the Old Testament law, and that the reason for this has to do with the form of God’s kingdom. Thus, we may wish to use the Old Testament law as a guide to actual policies. The law does go far beyond listing illegal sins; it states detailed policies to govern economic, social, and religious life. Unfortunately, the Old Testament law is far removed from our times. As a result there can be sharp disagreement between Christians about how to translate ancient policies into a modern ones.

An example should illustrate the issue. Land policy was a cornerstone of economic policy in Israel. When Israel first occupied the land of Canaan, God divided the land between them, each family receiving an allotment. Families were free to sell their land, but the sale was not to be temporary – every fiftieth year was to be a Year of Jubilee, when land would return to its original owners. With Ron Sider, we note that “modern technological society is vastly different from rural Palestine” (13) and that “it is the principle, not the details, that are important today.” (14) Modern agriculture, which makes possible the support of large modern populations, depends on efficiencies of scale that can be achieved on large farms but not on small ones. If all the land in America were redistributed and we all became small farmers, we would either starve or produce only enough for a rather mean and miserable life. In fact, without concentrated ownership of land the world would probably look like what Thomas Malthus anticipated. (15)

It is indeed the principle and not the detail that is important today. In this example, Sider argues that the principle at stake is that of “equality of opportunity.” To us, such adoption of secular political language seems distracting. (16) We can instead interpret the jubilee rule in terms of capabilities. We have argued that God is concerned with people’s capability to make morally significant choices. Economic capabilities matter precisely because their exercise requires moral decision-making. In ancient Israel, control over land increased one’s moral capabilities, because one could do good or bad things with land. On the other hand, when a man refused to fulfill his charitable obligations to his destitute neighbor, the neighbor’s capabilities would remain severely inhibited. The jubilee rule ensures that each generation is capable of making morally meaningful economic choices, choices with real consequences attached, all without mortgaging the capabilities of future generations. A modern-day analogue to the jubilee rule should do likewise; it should increase the moral capabilities of the least well-off. But in a modern economy, access to a good education might be more relevant than owning forty acres. It is this sort of analogizing that we call “modernization.”

Policies have many aspects, only some of which are functions of the times. In our example, we established that Israel had a welfare policy, and that the good which it provided – land – might not be the best choice for a modern welfare policy. But the good provided is only one aspect of Israel’s welfare policy. There were other important aspects that must not be accidentally altered – or even worse, consciously manipulated – during “modernization.” As Sider points out, “jubilee affirms not only the right but the importance of private property managed by families who understand that they are stewards responsible to God.” (17) We have developed a principle of moral capabilities that emphasizes precisely these values: the capability to make private moral choices, and answerability to God for the actual choices made. A welfare policy today should reflect these values regardless of what good it happens to provide.

This means that one cannot decide that welfare is “just” and then treat the question of which kind of welfare is “best” as secondary. Rather, arguments about the justice of modern welfare policies must take the details into account from the outset. Another way of saying this is that efforts to “modernize” Old Testament policies cannot be separated from the application of the basic Biblical principles already discussed. Without expressing an exact position on welfare, we will affirm that policies that expand the choices of welfare recipients are more just than those that restrict choice and encourage dependency. This is the case not because the recipients of welfare are necessarily sinners who must be cajoled into shaping up, but because their moral capability matters as an end.


STATE AND CHURCH: AREAS OF RESPONSIBILITY

God punished David for his adultery, but adultery is not a crime in our secular state. The reason for this difference between ancient Israel and the United States is not merely historical or cultural: it is more fundamental than those categories would imply. Some matters now are, properly, the province of the secular state, and some are not. Some are the province of the form of God’s Kingdom on earth, which is the church, and some are not. When the form of God’s Kingdom was the state of Israel, then those things which were properly the business of a state and those which were properly the business of God’s Kingdom coincided, for the obvious reason that the form of God’s Kingdom was a state.

Since, now, God has seen fit to ordain His Kingdom in the form of the church universal, which is a transnational entity, it is also true that He has Himself ordained a separation of church and state. Some governments may try to emulate a theocracy, but any such efforts are misguided. The church, and only the church, is or can be the theocracy today.

God’s division of these kingdoms - His Kingdom on the one hand, and the kingdoms of this world on the other - opens up the question: over what does God’s Kingdom (the church) properly have jurisdiction, and over what do the kingdoms of this world (the secular states) properly have jurisdiction?

One fundamental division of jurisdiction appears to be as follows: the secular state has jurisdiction over crimes, as crimes; the church has jurisdiction over sins, as sins. So, the state must define what is criminal and determine what punishments are appropriate for criminal actions, and the church possesses the advantage that God has defined what is sinful and has prescribed how the church should deal with cases of sin (e.g., Matt 18:25).

Another division of jurisdiction has to do with contracts and contractual relations in civil life. The state has jurisdiction over many kinds of contracts within its own boundaries, from business agreements to international treaties. The church, on the other hand, has no jurisdiction in such matters. Yet the church does have jurisdiction in some areas of contract. The church can choose, for instance, to remove a minister from office because of some egregious sin (which could be viewed as a “breach of contract” with God, serious enough to require his or her removal from office). Historically, the church also had jurisdiction over marriage (biblically understood as a covenant, or contract) and divorce, since marriage is based on God’s created order for human beings (cf. Matt 19:8-9). We argue that marriage and divorce should always be the domain of the church and not the state. But today through civil unions, marriage licensing, etc., church and state are very tightly intertwined. The ideal New Covenant division, in which the church administers marriage while the state is restricted to endorsing legal partnerships, will be hard to attain. (18)


CONCLUSION

We began with the fact that Christians may worship the same God, but do not agree about the proper way to apply God’s standards in the modern state. We raised for ourselves the question, "Which sins should be legal, and which should be illegal?" Christian thinkers have offered answers to such a question, but the answers have not been satisfactory. That is so because they are based more on human reason and commonsense than on the Bible (e.g., Aquinas), or have merely used the Bible as a source of proof-texts in support of a certain view (e.g., Ronald Nash and Eric Beversluis).

We required an answer to the question that is Biblical, not merely in that it cites Bible passages, but in that it is drawn from an understanding of the covenant-history between God and man: in short, God's entire method of working in history.

In pursuit of our answer, we rephrased the question to read: "Concerning which sins does God want us to make laws, and concerning which sins does He not want us to make laws” (leaving open the possibilities “all” and “none”). Although this was a trivial rewording of the original question, it forced us to focus on Biblical evidence about God's will, rather than on human intuitions.

We saw, in light of Jeremiah 18, that God certainly has preferences about laws in a secular state, although ultimately behavior is the basis for His judgment of the nations. We also saw that good and bad, right and wrong, just and unjust are ultimately only ways of describing things that accord or do not accord with God's will.

We also saw that the Old Testament has more to tell us about matters of law and the state than does the New Testament, which is so because the form of God’s Kingdom under the Mosaic Covenant was a nation-state. We noted also that, although the form of God’s Kingdom differed in the New Testament, Jesus still affirmed the fact that the Old Testament is God’s revealed word - thus leaving no room for “pick and choose” exegesis.

We reviewed God’s covenant-making throughout the Bible, so that the Mosaic Covenant and the New Covenant which replaced it could be understood in their proper perspective. The Bible does not contain multiple examples of lawgiving, but it does contain multiple examples of covenants. We established a principle that applied in all of the covenants: that God’s requirements (or “laws”) are given to people who are free to reject them. That is, God always gives humans moral freedom. Such was the case in the original, Adamic or Creation Covenant, and such has always been the case.

The freedom to make moral choices is something God has built into us. It is part of being made in his image. Laws in the state should reflect that reality. Thus murder and theft should be illegal because they rob the victim of capabilities to make morally significant choices. On the other hand, viewing pornography or having homosexual intercourse should not be illegal, because in these cases the laws would only further restrict the capability of the individual to make meaningful moral decisions.

The form of God’s Kingdom is a further, important determining factor when we consider laws and the state. God’s New Covenant has established a new form of the Kingdom; namely, the church. The church is not a state, and so it has no jurisdiction over crimes. So, for example, the church cannot impose religion or forms of worship on the state. On the other hand, the church, not the state, should have the authority to declare a couple married or divorced, since marriage is an institution founded by God (although today, with the existence of such institutions as civil unions, marriage licenses, etc., church and state are very tightly intertwined).

Finally, we considered the issue of the "modernization" of Old Testament laws, and argued that we should look to understand and apply the principles, rather than the letter, of the Mosaic laws.

Sin is sin and is abhorrent to God; the question we have tackled here is which sins should be subject to legal penalties. God is the judge of nations; whether a sin is legal or illegal, the church is called to work to reduce it, to encourage the people of every nation to live in accord with God's will. This matters because God will judge nations that transgress egregiously (Jeremiah 18)

Accordingly, there is no need to develop some secularly-inspired limit on the scope of Biblical truth, e.g. restrict the Bible to our private lives but in public promote a secular notion of "democratic liberalism." On the other hand, there is also no ground for trying to make our nation into a theocracy, as God has ordained that the form of his Kingdom now is the church universal. What we can do is better understand how Old Testament law can guide us in crafting laws for our nation that please God. But that can probably only happen - and perhaps should only happen - when such laws arise out of the moral conviction of the people.



1. See, for example, ongoing polls by the Pew Forum on Religion and Public Life. Recent data are available at http://pewforum.org/publications/surveys/religion-politics.pdf.

2. See Aquinas, Thomas. Summa Theologica. Prima Secundae Partis, Question 96, Article 2. Available online at http://www.newadvent.org/summa/.

3. Ronald H. Nash, A Reply to Beversluis, in Economic Justice and the State. Grand Rapids, MI: Baker Book House, 1986. p. 61.

4. We reject several approaches to OT and biblical material which militate against the possibility of biblical theology - against the possibility, that is, of “understanding the Bible as a whole.” Positions rejected include classic literary or “higher” criticism (the “Documentary Hypothesis”), pentateuchal form-criticism (Gattungsgeschichte) as practiced by Herman Gunkel and his followers, rhetorical criticism as practiced by , e.g., Robert Polzin, and deconstructionism and reader-response criticism as practiced by, e.g., David Clines. We consider that all of these approaches are fundamentally antisupernatural in their philosophies, as is evidenced by their consistent rejection of biblical miracles and biblical claims to revelatory status. For further reading that adduces evidence and argument against some of the above-mentioned approaches, cf. Umberto Cassuto, The Documentary Hypothesis (Jerusalem: Magnes, 1941), R. K. Harrison, Introduction to the Old Testament (Peabody: Hendrickson, 1999), and Duane Garrett, Rethinking Genesis (Christian Focus, 2003).

5. Erickson, Millard. Christian Theology. Grand Rapids: Baker Books, 2000. p. 228.

6. E.g., Dt 4:6-8, where Moses says of God’s laws, “ Observe them carefully, for this will show your wisdom and understanding to the nations, who will hear about all these decrees and say, "Surely this great nation is a wise and understanding people. What other nation is so great as to have their gods near them the way the LORD our God is near us whenever we pray to him? And what other nation is so great as to have such righteous decrees and laws as this body of laws I am setting before you today?”

7. For evidence of the covenant nature of Gen 1:1-2:3, see Jeffrey J. Niehaus God at Sinai (Grand Rapids: Zondervan, 1995).

8. Or in the theory of Rawls, to terms to which they would in principle consent, were they deprived of information about their specific situation in life.

9. One salient difference between a social contract and a Biblical covenant is that, as we next discuss, a covenant can in no sense be understood has an agreement between equals who each individual seek their own ends.

10. The same invitation appears in Pr 8:7-11: “My mouth speaks what is true, for my lips detest wickedness. All the words of my mouth are just; none of them is crooked or perverse. To the discerning all of them are right; they are faultless to those who have knowledge. Choose my instruction instead of silver, knowledge rather than choice gold, for wisdom is more precious than rubies, and nothing you desire can compare with her.”

11. A related passage is 1 Samuel 8:11-17, in which God warns Israel of the danger of concentrated political power.

12. In making this distinction between freedoms and moral capabilities, we are indebted to philosopher Amartya Sen, who argues forcefully for a similar distinction. See, for example, Development as Freedom. New York: Anchor Books, 2000. Sen suggests that the concept of “freedom” that is most relevant is that of “freedom as capabilities.” The difference between his terms and ours is the following: Sen refers to capabilities as “functionings” in general, while we are interested only in a subset, in what we have called moral capabilities.

13. Sider, Ronald. Rich Christians in an Age of Hunger. : W Publishing Group, 1997. p. 75.

14. Ibid, p. 76.

15. Sider provides a second example of mistaken focus on the letter rather than the spirit of the law; see his discussion of interest rates, p. 76.

16. Equal opportunity is a highly-charged catch-phrase, and not well defined. John Rawls has argued forcefully for a distinction between “equality as careers open to talents” and “equality as equality of fair opportunity,” and says even of the latter that “offhand it is not clear what is meant, but we might say that those with similar abilities and skills should have similar life chances.” (A Theory of Justice. Cambridge, MA: The Belknap Press, 1999. p. 63.) Amartya Sen has criticized this notion as too tolerant of arbitrary accidents of birth. Sider comes closest to providing a definition when he speaks of “an equality of economic opportunity up to the point that [every family] had the resources to earn a living that would enable them not only to meet minimal needs of food, clothing, and housing but also to be respected participants in the community.” (p. 69)

17. Sider, p. 71

18. This division bears directly on the current hot-topic issue of homosexual marriage, but is important for thinking about the chronic issue of divorce as well. C.S. Lewis thought that the same division would be the just, Biblical response to divorce. He argued that marriage as defined by the state should be quite separate from Christian marriage, that everyone should be aware of the distinction, and that the reason for this is that many citizens were not Christian and should not be compelled to behave as Christians. See Mere Christianity. San Francisco: HarperSanFrancisco, 2001. p. 112.

Jeffery J. Niehaus, Ph.D., is a Professor of Old Testament at Gordon Conwell Theological Seminary. His son, Paul F. Niehaus‘ 04, is an Applied Math and Economics concentrator in Dunster House.