What Theonomy Gets Wrong About the Law

Theonomy talk has resurfaced. Perhaps, this is the Protestant-evangelical concomitant to the Integralist debate presently occupying politically astute Catholicism. I welcome it. If nothing else, it means that Christians are taking politics (and public morality) seriously again. A robust debate is needed, and previously discarded options need to be reconsidered. This, however, does not mean that all suggestions are viable, desirable, or theologically coherent. If the temptation of Integralism is owed to its elegance, then the temptation of Theonomy is owed to its relative simplicity.

Like integralists within American Catholicism, theonomists remain a minority in Reformed evangelical circles — it does not help that there seem to be as many “theonomies” as there are theonomists — and not everyone is buying their arguments. Yet, critiques of Theonomy have been shockingly lackluster and have only exposed the relative incoherence and unseriousness of competing Christian political outlooks.

Andrew Walker’s recent longform treatment of Theonomy at The Gospel Coalition is one such critique. Jake Meador has sufficiently pushed back on Walker’s, at times, confused and confusing assessment. More importantly, the former has already demonstrated the classical view, embraced by the Reformers, of the relationship between the natural law and Decalogue, the latter being a summary republication of the former and, therefore, universally applicable. This has been confessed by Christians at least since Gratian’s Decretum. As Thomas Aquinas put it, “The Old Law showed forth the precepts of the natural law,”^[1] precepts that “belong to the natural law absolutely.” ^[2] This need not be rehashed here but it is for this reason, and not because it is recorded in scripture, that the Decalogue remains universally binding. The same is not true of all modes of law similarly recorded.

One can speak of the OT law as a whole unit, and, indeed, it functioned that way, as with any legal regime. But when broken down into constituent parts, the conclusion is inescapable that not all parts should be categorized or weighted identically. Theonomists themselves admit this, to some extent, by judging the ceremonial law fulfilled in Christ to be abrogated. But have the judicial laws also expired? Theonomists answer in the negative. The Reformed tradition says otherwise. Westminster Confession 19.4 states,

“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.”

The obvious question is, “Why did the judicial laws expire with the state of that people?” Christ said he did not come to abolish the law (Matt. 5:17). If they are recorded in scripture, and applied to God’s covenant people, on what basis does their applicability cease?^[3]

***

To answer the central Theonomic question, we must look at what kind of law the judicial laws of Israel were. This requires importing something Theonomy lacks, a typology of law. To my knowledge, no one has taken the theonomists to task on this front. It is odd that critics of Theonomy almost instinctually opt for challenging its view of covenantal continuity. A far more potent critique would consider Theonomy’s view of law qua law. If we momentarily exit the covenant frame of debate, the real problem with a Theonomic view of law comes into view even more clearly. In brief, theonomists have jettisoned the classical division of law, which was perpetuated by the Reformed tradition, and accompanying explanations of each part of said division. They, therefore, misunderstand what Mosaic judicial law actually is; they have miscategorized it and thereby misuse it.

To be clear, the issue is not whether the Old Testament (OT) law was unjust. Some theonomists insist that treating the OT judicial law as not universally binding is, effectively, to declare the law unjust. This is a false dichotomy. Neither is it an issue that the Decalogue, the OT moral law, is universally binding, even as to both tables. It is. The key question is whether or not the OT judicial law is enduring and universal, which is the distinguishing claim of theonomists.

We will limit ourselves to this demonstration only, that of categorization of OT judicial laws, and will avoid discussing (at least directly) the question of “general equity” both amongst theonomists and within Reformed confessions.^[4] In brief, Mosaic or OT judicial law is rightly categorized as human law, though divinely sourced or inspired. Given that it properly belongs to the genus (i.e., category) of human law it cannot be generally or universally applicable. This thesis, of course, requires some explanation.

For this task, I shall take Franciscus Junius (1545-1602), and his The Mosaic Polity (1593), as my chief guide and spokesman, and for several reasons:

1) The question presented by Theonomy was live in his own day and was the impetus for his book.^[5]

2) In the late 16^th and early 17^th centuries, Junius was a theological authority in the Reformed community, not least because he studied at Geneva under John Calvin (1509-1564) and Theodore Beza (1519-1605) and was a close colleague of Zacharias Ursinus (1534-1583) at Heidelberg. Needless to say, his opinion carried weight.

3) Theonomists often cite John Cotton’s (1585-1652) Abstract of the Laws of New England (1641) as proof positive that Massachusetts Bay was a Theonomic state. There are myriad reasons this is historically inaccurate which we will not get into here.^[6] What is noteworthy is that Cotton relied heavily on Junius’ Mosaic Polity in his (posthumously published) most extensive text on political theory, A Discourse About Civil Government (1663). Hopefully, then, Theonomists will at least permit Junius a fair hearing. Cotton certainly thought him persuasive.

***

Junius held that the law of Moses expressed throughout the Pentateuch, follows Thomas Aquinas’s division of law and, therefore, offered an example of each mode or form of law. Not only is OT law rightly organized into moral, judicial, and ceremonial law categories, it is also distinguished according to the received Thomist division: eternal law, natural law, divine law, and human law. This division forms a hierarchy of law with each logically subsequent form of law depending on connection to the preceding form for its validity.

As Brian McCall helpfully illustrates in his magisterial work, The Architecture of Law (2018), the eternal law serves as the foundation. The natural law discovers and erects the framework of the structure. Divine law provides a blueprint for the exercise, compensating for the noetic effects of the fall. Human law decorates the structure making it ornate in conformity to the framework itself. Properly speaking, the eternal law resides with the divine essence itself and is, therefore, unknowable to creatures. The natural law is the eternal law with a creaturely referent, to borrow from David Haines and Andrew Fulford.^[7] In other words, God has graciously accommodated the eternal law to our nature. In this sense, natural law is a participation in, and derivative of, the eternal law, the first principles of which are implanted in all men, though their apprehension thereof be varied and imperfect.

Accounting for fallen nature, the divine law, or inscripturated law, is necessary so that men might have a surer grasp of the natural law, its first principles and secondary conclusions. And yet, even when clarified by divine law, the precepts of the natural (or moral) law are general and, therefore, require not only that secondary conclusions be drawn (by good and necessary consequence) therefrom, but that they be concretely applied to human circumstances via legislation and adjudication. To govern man, the natural law must be brought down to the life of man. This is where human law comes in and where we will focus the rest of our attention.

Human Law

The process of forming human law is itself established “by God by nature,” says Junius,

“[S]o that reason would draw out the principles from the intellect, from the principles it would connect conclusions, it would accommodate conclusions to particular things, and from the particular conditions it would make just and individual determinations.”^[8]

As with apprehending the natural law, the difficulty with human law, of course, is man’s fallen nature. At one point or another in the process, the judgment or perception of common principles and particular conditions breaks down. Plus, as Aquinas also argued, the reason operates at less than full power because of the dominance of sensual appetites. The law of sin conflicts with the law of right reason. Hence, the necessity of divine (inscripturated) law which works to lead man back to the natural law and thereby participate again in the eternal law.

Stated already is that the simplest way to think about human law is as natural law applied. Accordingly, its validity and justice depends on the degree to which it rightly applies (or determines) the natural law to particular human circumstances. It is a composite product, so to speak, just as creatures are (metaphysical) composites. All human law contains an immutable part and a mutable part, instructs Junius. “[T]he former always obligates, whereas the latter obligates according to the persons, matters, and circumstances of those who live under them.” The part that is immutable is that which conforms to “the eternal reason, which God adumbrated in nature.”^[9] The part that is mutable is that which conforms the natural law to mutable human necessity. With that groundwork laid, we can return to consideration of OT judicial law.

Per Junius, the OT judicial law was also an example of human law, or the natural law “accommodated to human and political conditions.” Indeed, “the entire political and forensic temperament of this genus of human law was established by God in the law of Moses.”^[10] Do not miss this. Junius is saying that Scripture itself attests to both the classical division of law and the designation of the OT judicial law as human law. But this is not to denigrate the OT judicial law.

The examples of human law in OT law “occurred in the mode of perfection,” that is, they are perfect examples —perfect species of the genus — of human law and, therefore, are worthy of veneration and provide much guidance. “Perfection” in this sense, explains Junius, is to be understood not in the sense that God himself is perfect, but insofar as within the genus of human law there was no imperfection corrupting it; the OT law is “comparatively” perfect in that it is a perfect manifestation of the genus to which it belongs.

Furthermore, the law of Moses insofar as it contains human law, is the exemplar of all other human law because it was “set forth, confirmed, and sanctioned by God with a solemn witness.” No other human law regime can claim such a pedigree. Though the judicial and civil laws of Israel were, by definition, human laws, God (via Moses) was the legislator. Never again has this occurred in history. Junius, therefore, recognizes — and this may please the Theonomists — that the OT judicial law is undeniably divine in origin, principle, and end though it was “promulgated in a human mode.”

But this truth does not imply that the OT judicials are divine in every way. They are divine in origin because they were given by God. They are divine in principle insofar as they reflect the higher, natural law. They are divine as to their end because they are oriented to the glory of God. But that is not the whole equation for human law composites.

“Therefore, we have stated that even if these laws that we call judicial are divine in origin, yet in themselves they are according to the nature of other human laws… And so, with respect to their principle and end, they are in all respects divine and immutable, but with respect to their matter and form, certain distinctions arise that must be observed so that human infirmity may not be attributed to divine things and so that divine authority and perfection may not be attributed to human things.”^[11]

Junius spends the rest of Mosaic Polity parsing this distinction. Let us examine it ourselves.

Universal and Particular

Even though the OT judicial law is divine in origin and principle, “yet according to its external form it is in a human mode,” and, therefore, “in a certain sense must also be spoken of as human.”^[12] To review, like any law belonging to the human law genus, OT judicial law is a composite and contains both immutable and mutable elements: a “universal one” and a “particular one.” The immutable element refers to the demonstration of “perfect reason,” the “unmoved principles,” an expression and application of the natural law (or “common law”). From this immutable element, all human law gains its legitimacy, justice, and force within the hierarchy of law.

On the flipside, the mutable element refers to particularity. That is, the circumstances to which the human law, as an instantiation of the natural law, is applied, conformed, and bound. Junius refers to the mutable element in human law as the “specific determinations” (“which are called particulars”) in the law, “to which one proceeds from unmoved principles and common [or secondary] conclusions according to the mode and condition of those matters subject to the regulation of the laws.”^[13]

Junius helpfully explains the difference between general and specific determinations to illustrate how this works. It is a general conclusion that a neighbor is not to be injured, or that “whatever is owed to him must be paid to him, and so forth.” This is the love of neighbor principle or Golden Rule. But it is a particular conclusion (i.e., determination) that “Peter, John, and Maevius must not be injured at all in this or that way, time, or place, and so forth,” on the basis of the preceding general conclusion from the higher principle. This determination of the natural law is a terminal ordering which “terminates in particular and individual matters” based on the knowledge of general matters.^[14] It is natural law applied to a particular time, place, and relationship.

Such determinations are “the material of human laws.” They are the application of general conclusions from the natural law, which itself is necessarily general, to particular “contingent” conditions or context. Whenever we see a law doing that, we know it belongs to the human law genus (even if it is given by God himself). Inside of time, persons, matters, things, and circumstances are in flux, subject to change, or mutable. A good deal of this flux, notes Junius, is attributable to, or resultant from, human activity within human society.

The bottom line is, unless said circumstances, etc. were themselves perpetual and immutable — which is improper for composite, creaturely beings subject to contingency — the law that governs them in the particulars cannot be immutable or changeless, lest it cease to be responsive and properly binding. Another way of putting it is that human or particular law exists “on account of something else. Whenever something exists on account of something else, then it is at least generally changed when we have reached its end.”^[15] The judicial (and ceremonial) laws of Moses were enacted on account of something else, to wit, the people and polity of Israel, “according to the particular condition of that people to whom God legislated.”^[16] When that body politic, that people, ceased, so to did the judicial law, the purpose of which (i.e., end) was the preservation of that people. By contrast, the moral law is predicated on, or enacted on account of, nothing else and is for all peoples.

These particular laws of Israel were “mutable from their beginning,” and this by design and according to their nature. “For all these laws have been brought forth on account of something else — with regard to a mutable republic, by reason of mutable things, persons, and circumstances, and in a mutable way — and are destined to change.”^[17] “[T]hese and other similar laws that are mutable by nature were thus established by god by a law of mutation and must be prudently distinguished from those things in the law that are immutable.”^[18] “In the same way,” says Junius, “we speak about the law of the Athenians, Lacedaemonians, Romans, Persians, or any other people… If the particular legal codes of one people were established in another place it would be harmful to that other community.”^[19] Laws established for the good and preservation of one people may not be conducive to another. Hence why Francis Turretin (1623-1687) said that the laws that were “accommodated to the genius and reason of the Jewish polity… useless to Christians living under a different polity.”^[20] Human laws must accord with natural law but also be suitable to the people and context which they govern.

At this point we can see the answer to a typical theonomist objection, viz., that to say OT judicial laws are no longer binding is to imply that they were unjust. From Junius’ formulation we can see that this is decidedly not the case. To say that the OT judicial laws were perfectly just and also no longer binding is no contradiction.^[21] They were perfect determinations but are nevertheless mutable according to their nature (and intent) and their concomitant mandate and authority expired with the circumstances to which they were applied. It is in this context that Deuteronomy 4:6-8, often invoked by theonomists, makes sense. The whole law of Israel is a testimony of God’s wisdom, justice, and righteousness to surrounding nations, perhaps especially the specific determinations therein. Applying the natural law is no easy thing for a fallen man. But it is for an all-prudent, omniscient, and just God.

Ceremonial and Mixed

Junius applies this same reasoning to the ceremonial law, or more importantly, those “mixed” laws which contain moral, judicial, and ceremonial injunctions and duties. As an example of mixed law, Junius cites Deuteronomy 21:1-8 wherein there are moral instructions (i.e., against shedding of innocent blood), judicial procedures (i.e., the role of the magistrate in investigation and prosecution), and ceremonial directions (i.e., the role of the church in expiation for the community). Other mixed laws would include observance of the Sabbath (Ex. 20:8-11; 31:14-15; Deut. 5:14),^[22] years of intermission or jubilee (Lev. 25), and the law against harboring murderers (Num. 35:9-34).^[23]

Junius advises that in mixed laws, “what is moral remains, what is judicial is absolutely changed according to the circumstances, and what is ceremonial universally perishes.”^[24] To break that summary down, that which pertains to piety, justice, honesty, and reason from the natural law endures beyond the circumstances. The judicial determinations do not change in “reason or substance” from which analogies can be drawn in later cases, but do change as to the circumstances, and this according to prudence.^[25] The inability to exercise prudence (i.e., “inflexibility of their judgments”), says Junius, may destroy a republic because the magistrates “strive for constancy or stubbornness more than understanding and discernment.”^[26] For example, from the law concerning reception of manslayers (Num. 35:9-34; Deut. 19:1-10) we retain the moral principle that homicide must be avenged but not rashly; that the innocent must be protected; that unintentional homicide should not be punished as harshly as willful homicide; and etc. But the bit from Numbers 35:24-27 about cities of refuge and retreat, as particular human law, should not be retained. Neither should the (ceremonial) sacrificial cleansing methods of Deuteronomy 21:1-9.

As to the ceremonial part, which also belongs to “particular law” and is “mutable in its own nature,” it has passed both in substance and circumstances, “especially in the ceremonies that were established as a shadow of things to come.”^[27] Because those laws were enacted for the sake of something else, they were abrogated once accomplished in Christ. Now, “the occasion is radically different,” and the “rationale of the place differs greatly.”^[28] By way of qualification, Junius adds that even though both judicial and ceremonial law are instances of human law, the spiritual danger inherent in unjustly following one post-expiration is greater than that of the other:

“The judicial commands that Moses handed down are dead, that is, no longer living in such a way as to obligate; but the ceremonial commands are deadly, that is, they cannot live any longer or be observed among the living without those who observe them becoming liable to death.”^[29]

At bottom, to reenact things of presignification and foreshadowing in worship would be far worse than an imprudent reestablishment of OT judicial law. It must be said that theonomists commit the lesser error.

To reiterate, and to risk oversimplifying the matter, mutable laws govern mutable things whilst the eternal moral law that undergirds and informs them do not. Human laws are mutable because they are concerned with transient things, their ends are instrumental unto the ultimate end of man but not the end of man as such and in themselves. They are sufficient and authoritative only insofar as they reflect the natural law and apply it justly to the respective circumstances or context.

This is the case for the laws of every nation, and Israel was no exception despite the divine quality, the divine inspiration, standing behind her statutes. Mutable parts of the law cannot per se bind other mutable circumstances, persons, and things to which they were not first fitted. Only the immutable part of the law transcends all such specificity of time and place.

As Luther quipped, “We will regard Moses as a teacher, but we will not regard him as our lawgiver – unless he agrees with both the New Testament and the natural law. Therefore, it is clear enough that Moses is the lawgiver of the Jews and not of the Gentiles.”^[30] Likewise, Aquinas: “[A]s to those precepts of the natural law contained in the Old Law, all were bound to observe the Old Law; not because they belonged to the Old Law, but because they belonged to the natural law.”^[31] The same goes for the so-called case law of the OT. Granted there are commonalities between OT Israel and every nation and society, “but they had particular cases that God in his infinite wisdom prescribed by his word, according to which their republic had been established.”^[32] That is, the case law decisions were accommodated to the particular mode or form of government of Israel.

Expired, Not Worthless

As alluded to already, none of this implies that the judicial laws of Moses are worthless after their expiration. Junius calls Moses “a most pure legislator and faithful servant.” His determinations of the natural law are, therefore, to be highly regarded and as mentioned already, are a perfect example of the human law genus. No one ever did it better, mainly because no one has received divine inspiration in doing so since Moses. To quote Luther again, “[W]e read Moses not because he applies to us, that we must obey him, but because he agrees with the natural law and is conceived better than the Gentiles would ever have been able to do… Thus, where he gives the commandments, we are not to follow him except so far as he agrees with the natural law.”^[33]

OT Israel is the only time in history that God has served as the legislator of human law. We would do well to look to those determinations for edification and guidance. Accordingly, even outside of the circumstances of Israel, contemporary Christians can reason from Moses’ determinations by analogy. What Junius is getting at here has been already partially stated. Insofar as the Mosaic determinations contain the natural law, that immutable part remains perpetually binding, and Mosaic determinations offer a flawless example of how to apply the immutable to the mutable.

This principle applies also to penalties prescribed in the OT judicial law. Junius holds that any penalty attached by Moses to a violation of the common or natural law can justly be maintained, though the means of such are susceptible to changed circumstances. By contrast, penalties attached to positive or human law in the OT are, thereby, subject to circumstances in toto and should not be perpetuated. For example, Junius says that capital punishment for murder should be continued, but not for violation of a particular Sabbath day (i.e., Numbers 15:32-36).^[34]

Furthermore, it is not per se sinful to preserve any of the OT judicial laws. Rather, such preservation is simply not required. That is the point, and this was a position held by Aquinas and Luther alike.^[35] As Junius puts it, “[Y]et some of them [i.e., judicial laws] are freely preserved, wherever it seems fitting, according to the rationale of communities… [and introduced] according to the proportion of the persons, things, and circumstances.”^[36] In other words, if the circumstances prove accommodating to certain OT judicial laws, then there is, of course, nothing wrong with reintroducing them. But it is not incumbent upon governments to do so in any circumstance.

It is important to realize the enduring utility of the OT judicial laws even if they are not perennially binding. For it is through good laws, wise and just determinations of the natural law that the natural law is demonstrated, learned, and embraced. God has graciously provided an example of this in his word for such instruction as a means for preserving the testimony of his natural law applied. Jean Porter has artfully described how fallen man does not grasp the natural law simply by pondering abstract principles which birth further abstract principles ad infinitum. Rather it is learned in context as the general principles of natural law mediated through a particular culture and context.^[37] McCall summarizes the same phenomenon as a “dialectical process” running back and forth between particular instantiations of the natural law back to general principles for evaluation of particular practices.^[38] In this way, from a careful study of Israel’s human law we can, indeed, glean a great deal.

Conclusion

Because OT judicial laws fit into the human law genus, albeit divine in origin, Junius concludes that,

“they have acted unjustly who have contended that this judicial law of Moses is divine in all respects because it is divine in its origin. For it is ignorant to draw conclusions about the whole from a single part in this way: the judicial laws of Moses are divine in origin; therefore, they are divine in all ways.”^[39]

Theonomists are deserving of the same verdict. Having jettisoned the key aforementioned distinctions, their outlook on law, and their insistence on the continued binding force of the OT judicial law, is not just overzealous and Biblicist but unjust.

But, as stated above, this does not imply that the OT judicial law is to be relegated to the proverbial dustbin. Rather, it continues to serve two purposes. First, insofar as the mutable judicial laws reflect and communicate the immutable natural law (i.e., the eternal law condescended to a creaturely state) they remain perpetual.

Second, the judicial laws present a divine model for positive, human law determinations. OT judicial law acts as sort of advisory or exemplary opinions; persuasive but not binding precedent. That is, a perfect demonstration of how the natural law, and its secondary conclusions, are to be applied to particular circumstances. They show us what wise and judicious legislating looks like; they paint a picture of one who has care of the community and promulgates reasonable law for the common good. Put another way, OT civil law is flawless human law because behind it stood a flawless legislator.

Footnotes

1. ST, I-II, Q. 98, A.5. “[A]s to those precepts of the natural law contained in the Old Law, all were bound to observe the Old Law; not because they belonged to the Old Law, but because they belonged to the natural law.” ST, I-II, Q. 98, A.5. ↑
2. ST, I-II, Q. 100, A.1. ↑
3. Notice too at the outset that here the confession does not explain the expiration via covenantal categories per se. The way in which the WCF phrases this statement is important. The judicial laws of Israel expired with the “State of that people.” They ceased to exist when the “body politic” ceased to exist. The two are bound together. ↑
4. For the historical and confessional definition of the term, see Tom Hicks, “Is ‘General Equity Theonomy’ a Confessional and Biblical Doctrine?” Covenant Baptist Theological Seminary (Apr. 5, 2021), https://blog.cbtseminary.org/is-general-equity-theonomy-a-confessional-and-biblical-doctrine/. ↑
5. Mosaic Polity, p. 66. ↑
6. See generally George L. Haskins, Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York: MacMillan Co., 1960) (describing, inter alia, the influence of English common law on the Bay Colony’s legal standards). Ralph H. Clover, “The Rule of Law in Colonial Massachusetts,” 108 U. Penn. L. Rev. 1001 (1960). See also Samuel Eliot Morison, Builders of the Bay Colony (Boston: Houghton Mifflin, 1930), pp. 229-230 (arguing that the actual legal code adopted by the General Court was a combination of Nathaniel Ward’s and John Cotton’s proposals). ↑
7. Haines and Fulford, Natural Law: A Brief Introduction and Biblical Defense (Leesburg: Davenant Institute, 2017). ↑
8. Mosaic Polity, p. 66. As Neils Hemmingsen phrased it, “Reason constructs these conclusions from the principles by necessary consequence for the government of human life.” Hemmingsen, On the Law of Nature: A Demonstrative Method (1562), E.J. Hutchinson (ed.) (Grand Rapids: CLP Academic, 2018), p. 30. ↑
9. Mosaic Polity, p. 68. ↑
10. Mosaic Polity, p. 62. ↑
11. Mosaic Polity, p. 68. ↑
12. Mosaic Polity, p. 97. ↑
13. Mosaic Polity, p. 98. See also Francis Turretin, Institutes of Elenctic Theology, 11.26 (“In the laws founded upon the common right or the law of nature, the substance of the precept must be distinguished from its circumstances.”). ↑
14. Mosaic Polity, p. 99. ↑
15. Mosaic Polity, p. 126. ↑
16. Mosaic Polity, p. 127. ↑
17. Mosaic Polity, p. 128. ↑
18. Mosaic Polity, p. 136. ↑
19. Mosaic Polity, p. 127. ↑
20. Institutes, 11.26 (“The polity having been abolished, the laws must necessarily be abolished upon which that polity was founded…”). ↑
21. Importantly, Junius notes, “For those things that are absolutely and intrinsically good sometimes become evil in certain circumstances. There is a time in which a good thing or a neutral or indifferent thing is rendered evil because it is unseasonable. There is a place in which a good or indifferent thing is rendered evil because it is out of place. Similarly, there is a mode and there are instruments by which good or indifferent things become evil because neither the mode nor the supports are proper.” Mosaic Polity, p. 135. See also Turretin, Institutes, 11.26 (“Although the best and wisest laws (as far as the state of that people was concerned) were sanctioned by God, it does not follow that on this account they ought to be perpetual.”). ↑
22. “It is not necessary to observe the sabbath or Sunday because of Moses’ commandment. Nature also shows and teaches that one must now and then rest a day, so that man and beast may be refreshed. This natural reason Moses also recognized in his sabbath law, for he places the sabbath under man, as also Christ does.” Luther, “Against the Heavenly Prophets,” LW 40, p. 98. ↑
23. Mosaic Polity, p. 143ff. For example, Junius says that good morals cannot exist without honor of the Lord one day in seven, but that the particular day designated as well as the limitations of certain activities (e.g., Ex. 35:3) are matters of judicial determination. ↑
24. Mosaic Polity, p. 140. ↑
25. Classically, prudence is the first of virtues which directs the exercise of all others. Hence, Neils Hemmingsen (1513-1600) said, “That this prudence is required by the law of nature is clear from the fact that nothing can be done correctly without it.” The constituent parts of prudence are memory, understanding, and foresight. Hemmingsen, On the Law of Nature: A Demonstrative Method, (trans.) E. J. Hutchinson (Grand Rapids: CLP Academic, 2018), pp. 106-107. ↑
26. Mosaic Polity, p. 141. ↑
27. Mosaic Polity, p. 141. ↑
28. Mosaic Polity, pp. 141-143. ↑
29. Mosaic Polity, p. 129 (citing Jerome and Augustine’s discussion of ceremonial laws in their correspondence. See Augustine, Letters 1-99, (trans.) Roland Teske, (ed.) John E. Rotelle (Hyde Park: New City Press, 2001), pp. 148-52, 280-96, 314-34.). ↑
30. Martin Luther, “How Christians Should Regard Moses,” (trans.) E. Theodore Bachmann, Luther’s Works, 35 (Philadelphia: Muhlenberg Press, 1960), pp. 161-174, 168. Elsewhere, Luther affirmed the same principle: “Why does one then keep and teach the Ten Commandments? Answer: Because the natural laws were never so orderly and well written as by Moses. Therefore, it is reasonable to follow the example of Moses.” Luther, “Against the Heavenly Prophets Concerning Images and Sacraments,” in The Annotated Luther, vol. 2, (ed.) Kirsi I. Sjerna (Minneapolis: Fortress Press, 2015), p. 66. See also Gary M. Simpson, “‘Written in their Hearts’: Thinking with Luther About Scripture, Natural Law, and Moral Life,” Word & World 30(4) (Sept. 2010), pp. 419-428. See also Robert Rollock, Lectures Upon The Passion, Resurrection, And Ascension Of Christ (1616), pp. 87–88 (“[T]hese laws, seeing the Jews, and their commonwealth, and laws politic, are abrogate, in so far as they concerned that people, we have nothing ado with them—they are abolished; but for as much as they are grounded upon nature, and natural law, we have ado with them.”). ↑
31. Aquinas, ST, I-II, Q. 98, A.5. ↑
32. Mosaic Polity, p. 142. ↑
33. Luther, “How Christians Should Regard Moses,” LW 35, p. 170. See also Aquinas, ST, I-II, Q. 98, Art. 5, A. 1. (“The Old Law showed forth the precepts of the natural law, and added certain precepts of its own. Accordingly, as to those precepts of the natural law contained in the Old Law, all were bound to observe the Old Law; not because they belonged to the Old Law, but because they belonged to the natural law. But as to those precepts which were added by the Old Law, they were not binding on save the Jewish people alone.”). ↑
34. Mosaic Polity, p. 117-119. ↑
35. Aquinas, ST, I-II, Q. 104, Art. 3 (“For if a sovereign were to order these judicial precepts to be observed in his kingdom, he would not sin: unless perchance they were observed, or ordered to be observed, as though they derived their binding force through being institutions of the Old Law: for it would be a deadly sin to intend to observe them thus.”). Luther, “Against the Heavenly Prophets,” LW 40, p. 98 (“And I wish that we would accept even more of Moses in worldly matters, such as the laws about the bill of divorce [Deut. 24:1], the sabbath year [Lev. 25:2-7], the year of jubilee, 21 tithes, and the like.”). See also Robert J. Ross, “Distinguishing Eternal Law from Transient Law: Natural Law and the Judicial Laws of Moses,” Past & Present 217 (Nov. 2012), pp. 79-115; Douglas Kries, “Thomas Aquinas and the Politics of Moses,” Review of Politics 51(1) (Winter, 1990), pp. 84-104. ↑
36. Mosaic Polity, p. 128. See also Ibid., p. 149 (“…whatever belongs to a particular law… can be retained, if anyone desires.”). ↑
37. Porter, Ministers of the Law: A Natural Law Theory of Legal Authority (Grand Rapids: Eerdmans, 1999), p. 120. ↑
38. McCall, The Architecture of Law: Rebuilding Law in the Classical Tradition (Notre Dame University Press, 2018), p. 227. ↑
39. Mosaic Polity, p. 69. ↑