Dividing Moral Law from Civil Law

Click for more in this series: Part 1, Part 2, Part 3, Part 4, Part 5

This is the third installment of my counter series to Adam McIntosh, a man I have been picking on for a couple weeks now. If you are unfamiliar with his work, please visit The Kuyperian Commentary.

This article focuses on the second of my three critiques of McIntosh, which is that he provides a rubric for dividing between civil and moral laws that I believe to be incorrect. McIntosh says

God distinguishes between sins and crimes. If a command is given without an attached punishment, then it does not constitute as a civil law. It’s a moral law that you should obey but not a law that civil rulers are to regulate.

I plan to interact with this in today’s installment and to show where I think he is wrong, and to suggest a better rubric for dividing between criminality and private morality. In fact as we do, we may find out that McIntosh doesn’t really disagree with me, but we’ll have to see.

Unfortunately for you, the reader, I have to take a slightly windy path to get there. I do apologize. Please stick with me. There’s a gold star in it for you if you do.

God Ordained Civil Government

If you’ve been following my blog for long, you will be aware of my Theology of Civil Government and Human Authority in which I leave open a very important question: What is the definition of crime? This is the question before us today. McIntosh and I agree strongly that God ordained civil government, and that he did so for a specific purpose: to punish criminals. This dates directly back to the Noaic Covenant.

Genesis 9:5-7

And for your lifeblood I will require a reckoning: from every beast I will require it and from man. From his fellow man I will require a reckoning for the life of man.

“Whoever sheds the blood of man,
by man shall his blood be shed,
for God made man in his own image.”

It is further attested in the New Testament.

Romans 13

Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God […] [the governing authority] is the servant of God, an avenger who carries out God’s wrath on the wrongdoer.

1 Peter 2

Be subject […] to governors as sent by him to punish those who do evil and to praise those who do good.

So it is plain from the Scriptures that God has appointed civil government. To rail against this as an inherently unjust institution is counter-Biblical. To refuse to be “subject to the governing authorities” and to “resist the authorities” is to “resist what God has appointed.”

I’m well aware that in my promotion of Libertarianism as the appropriate political position for Christians some miscommunication has occurred. This is probably due in part to lack of clarity on my part, but it’s also probably due to a bit of guilt by association. Going back a post, McIntosh highlighted that Rothbard’s objection to the State is that he finds it inherently immoral in that its very existence is a violation of the Non-Aggression Principle.

Indeed many Libertarians, particularly Anarchists in the vein of Stephan Molyneaux, believe that government in any sense is inherently immoral because its very existence constitutes aggression. (Actually, to do Molyneaux justice, he doesn’t believe that government is immoral, he believes that it doesn’t really exist. In his view, what we call government is merely a mafia enabled by the populace, but that’s hardly the point.) I disagree with this notion entirely! I affirm that God has ordained civil government, but further affirm that he has ordained it for a specific purpose.

It’s helpful to keep in mind that Rothbard is using the Non-Aggression Principle outside a proper Biblical understanding of authority. Rothbard fails to understand that the reason any moral judgment can be made about the behavior of civil government is that God has ordained it! Just as God holds husbands, parents, and masters accountable for their exercise of their authority, God will hold civil magistrates accountable for their exercise of authority.

Nevertheless, when anarchists point out the immoral nature of certain of the government’s activities, they are on the right track. They simply fail to make the proper appeal for authority. God is the one who judges the government! This is where things get unfortunate, for I often post things from Rothbard, Molyneaux, and other atheist anarchists (such as the Facebook Page “Statism is Slavery”), because they very frequently put out pithy statements that highlight some fundamental problem in the system.

I am well aware that people disagree with me on these things. I don’t always necessarily agree with the statements. Rather I post them to challenge deeper thinking, for most of the problem I have with what I perceive to be the typical Christian stance on politics is that the typical Christian – in my scenario – has not sufficiently thought things through. They haven’t challenged the foundations of what they’ve been told to think. They’ve not sat and done the hard analysis of things like the drug war to really determine whether such things are just or not.

Perhaps I’m wrong. If someone can morally justify their stance having thought through it with the Scriptures in hand, I can’t judge them. I really can’t judge them in any case. But it is my hope, simply, to challenge deeper thought in those who haven’t. I am, however, re-thinking this practice, for it seems that the medium tends to incite conflict rather than productive dialog or thought provocation. So since, I absolutely hate the thought that I might be used as a tool to sow discord, I think it may be wise to leave off.

In any case, I still advocate Libertarianism, for I believe that we have a responsibility, as Christians to restrain government. But if God judges the government, why do I insist that we ought to restrain it? Shouldn’t we simply submit? (Romans 13) Shouldn’t we simply pay our taxes? (Mark 12:17) Shouldn’t we simply turn the other cheek? (Matthew 5:39) Shouldn’t we simply “joyfully [accept] the plundering of [our] property”? (Hebrews 10:34). Yes! But it is not mutually exclusive to submit to government and to God in these ways while also calling the civil magistrate out for his immoral activities, for God has ordained government for a specific purpose, and he will hold it to account.

God Will Judge Government – And Its Voters!

I believe we have a responsibility to restrain government precisely because I believe that God will judge the civil magistrate. I further believe that as we sit in a uniquely privileged position, unheard of in Paul’s day, to participate in the direction of our democratic republic through voting, we therefore will fall under that judgment on the basis of what we’ve directed the government to do! So we must take seriously that God will evaluate government, and will evaluate our votes! I don’t mean this to take the Marxist “We are the government” line, yet this government is “of, by and for the people.” As we participate in government, our votes, lobbies, campaign contributions, and even debates with friends and families, all work together to have an influence on what this government does. Therefore, if God will judge the magistrate, certainly he will judge the one who gave the magistrate his orders, right?

On the basis of what standard will God judge them? On the basis of the Word of God, from which we find two relevant principles: 1) The Non-Aggression Principle 2) That God has given the civil magistrate one specific job. What job? To sum it up, 1 Peter 2 says, “Punish those who do evil.” “Praise those who do good,” or as Romans 13 puts it: do not be “a terror to good conduct, but to bad.” That is to say: Criminal Justice. Nothing else. God will judge the civil magistrate over whether it has done its job.

Case Study: Drug Prohibition

This might constitute a bit of a digression, but I want to use drug prohibition as a bit of a case study to demonstrate how I use this principle to evaluate government’s activities. Why do I oppose drug prohibition so vehemently? Am I some closet pot smoker? (I’m not just in case it’s eating away at you). No, it is because of Opportunity Cost. In my analysis, the very existence of drug prohibition constitutes an institutionalized misuse of the government’s sword to terrorize those who do good – non-violent drug offenders – while neglecting to terrorize those who do bad – murderers, rapists and burglars.

Drug users are generally non-violent, recreational users of a mind altering substance. They generally keep to themselves and mind their own business. Their drugs do great harm to their own minds and bodies, but they really don’t harm anyone else. I know you’re thinking up objections to this, but unless you’re an absolute teetotaler who favors the return of Alcohol prohibition, then you should be able to recognize that these problems are due not to the drug itself but to the improper use – or abuse – of the drug.

Just as alcohol can be drunk in excess to the imperil of judgment and driving skills, so too can drugs be used in such ways that cause negative effects. But if this is the case, then it is the responsibility of the user to know this and to use in such a way that mitigates or limits the risk that the effects can harm someone else.

The specifics are different in each situation. Alcohol can be consumed in moderation, and driving can be avoided after consumption. It would be different for each other drugs. If, as the oft-repeated, but never substantiated claim goes, there really is a drug out there that is so potent that even the tiniest of hits sends the user into an uncontrollably violent frenzy, then it must be possible for the user to have his friends tie him down before use.

Thus the principle remains that the drug itself is not the cause of these problems, it is the irresponsible use of the drug. And just as spousal and child abuse while under the influence of alcohol may still be prosecuted without necessarily having to ban alcohol (or at least ought to be), so too can those who harm others under the influence of drugs be prosecuted for harming others. Being under the influence of drugs is just a detail.

Therefore, drugs themselves are amoral, and their use , while perhaps immoral on stewardship grounds, cannot be said to be a civil wrong, and so their use should not be considered a civil crime. Rape and murder on the other hand are very definitely civil wrongs. They are violent evils inflicted on real victims and their families. They bring measurable damage to life, liberty and property. So civil magistrates really exist to take down rapists and murderers while leaving non-violent drug users alone.

But our government has our police chasing down non-violent drug users. Every single cop investigating drugs is a cop not investigating a murder, rape or burglary. Every single judge presiding over the trial of a drug offender is a judge not presiding over the trial of a murderer, rapist or burglar. Every single jail cell in our overcrowded prisons that houses a non-violent drug offender is a jail cell that is not housing a murderer, rapist or burglar. Every single dollar spent on enforcing drug prohibition is a dollar not spent on bringing justice to murderers, rapists and burglars.

Thus, in the case of drug prohibition, our government is not doing its job. The fact that the activities required to enforce drug prohibition involve violations of the US Constitution, and the individual’s life, liberty, and property, are, in my mind, secondary.

Now before I leave this case study, I must deal with a looming objection. If I don’t deal with it, I leave myself open for a counter attack. Those who favor drug prohibition are likely to point out all of the violence related to the drug trade. Indeed, there is a lot of violence surrounding drugs. Without waxing eloquent, I will simply state my position that I believe these things to be caused not by the drugs, but by the drug prohibition. As alcohol prohibition sent the trade of alcohol into the hands of Al Capone and made alcohol a violent market, so too does drug prohibition send the trade of drugs into the hands of cartels and gangs, making drugs a violent market. Just as ending alcohol prohibition returned trade of alcohol to peaceful establishments, so too would ending drug prohibition return the trade of drugs to peaceful establishments – like Walmart (who could be regulated by the way). Violence will still exist because it comes from the hearts of men, but drug-related violence would plummet overnight.

How to tell Moral and Civil Law Apart

I say all of this to show my hand. I’m sure you noticed the underlying assumption inherent to my analysis. I’ve assumed that non-violent drug offenders are not the “wrongdoers” of Romans 13 and 1 Peter 2, and that they do not deserve the civil magistrate’s terror. How can I say this? Because I believe that the way to distinguish between a sin that is a civil crime and a sin that is merely a private sin is to determine whether there was an actual, real human victim. McIntosh seems to disagree.

God distinguishes between sins and crimes. If a command is given without an attached punishment, then it does not constitute as a civil law. It’s a moral law that you should obey but not a law that civil rulers are to regulate.

I hardly disagree with his first statement, yet I do disagree with the rest, as I’m sure you’ve guessed. As a good minarchist, McIntosh rightly draws a line between sins that are simply moral and sins that are also criminal. Unfortunately, where McIntosh draws the line is faulty.

It’s not uncommon. I’ve heard it before. To McIntosh, all that is needed to determine whether something ought to be criminal is whether the Scriptures prescribe a punishment. To begin, we can use this as the cornerstone of an analysis of the Mosaic Law which leads us to believe that the following are civil crimes. These are just a small sampling of the types of things that the Mosaic Law prescribes death or exile for.

• Eating leaven during the feast of unleavened bread (Exodus 12:15)
• Working on the Sabbath (Exodus 31:14-15)
• Not following the proper protocol during sacrifices (Leviticus 7)
• Eating Blood (Leviticus 7)
• Eating sacrificial meat on or after the 3rd day after the sacrifice (Leviticus 19:8)
• Approaching the holy things while being unclean (Leviticus 22:3)
• Working on the Day of Atonement (Leviticus 23:29)
• Not observing the Passover (Numbers 9:13)
• Touching a dead body and not being ceremonially cleansed (Numbers 19:13)
• Cursing your parents (Exodus 21:17)
• Blasphemy or Swearing (Leviticus 24:11-16)
• Idolatry (Deuteronomy 13:5-10)
• Teenage Rebellion (Deuteronomy 21:18-21)

So you can see the inherent flaw in this rubric. Unless he a staunch statist Theonomist, which I doubt from his advocation of minarchy, I hardly think McIntosh would promote passing laws against such things. But such is the logical conclusion of the rubric he put forth.

Presented with a list like this, I fully expect the Theonomist to do a certain amount of “yeah, but” back peddling. Just take Idolatry for a instance. Are we to throw out the First Amendment?

If a Theonomist is to be consistent within his own premise, he must either demand that there be one official religion, or he must provide a satisfactory answer to why he doesn’t.

His answer for why he doesn’t will rely to some extent on the fact that there is no simple rubric for parsing the Mosaic Law into categories such as civil, ceremonial, or moral. To do so is to read into the text a delineation that is never made in Scripture, and ultimately makes the Law of Moses something that it was never intended to be.

The Theonomists would have us believe that Israel was God’s attempt to set up a utopia in a vacuum. They would never put it in such terms, but it is, nevertheless the logical reality of their mode of thinking. Discuss politics with a Theonomist, and they’re likely to say something like, “If you found yourself king for a day, what would you do? Wouldn’t we want to know what God did?”

This sounds great on the surface, but it seems to indicate that God just randomly happened to find himself king one day. This way of looking at the Old Testament law completely ignores the fact that the form the Mosaic Law and the Israeli government took was far more highly influenced by the redemptive-historical, eschatological, and ecclesiastic purposes God had for Israel than by some universal, objective standard of civil justice that was to be applied to every civil society everywhere.

Try reading the Law again without any preconceived notions. Get into the mind of a people who had just been rescued from slavery in Egypt and evaluate the Laws you’re hearing without the baggage of systematic theology for a moment. What is this law for? What is it’s focus and goal? When you do this, you will overwhelmingly find that this Law is primarily about how God’s covenant people should live in relation to himself and to their neighbors. It is first and foremost religious in nature, and civil law is an afterthought.

Just examine the language surrounding many of the laws that have prescribed punishments – particularly the death penalty. You find these repeated phrases, “I am the Lord your God” and “Purge the evil from among you.”

The first phrase puts the reasoning for the command squarely on the fact that these people are to “be holy for I am holy.” The second phrase further builds on this idea of holiness to point out that corruption, if tolerated in the covenant community, will spread until the whole thing was corrupt, a danger against which God repeatedly warned the Israelites.

The issue is that God’s presence was dwelling among them in the Tabernacle, and if this people was to have God’s presence with them, they had to be holy. This was a historically unique set up. No other nation in history has or will ever have this burdenous privilege. Since we do not live under this Old Covenant, but live under a New Covenant, wherein God’s presence dwells in the hearts of his people who are organized not into a civil nation or body politic, but into a universal and timeless body of believers, his covenant law therefore takes a different form. It is still there, mind you! But it no longer carries the civil law baggage it once did, for it is no longer civil in circumstance.

It is important to remember Israel’s typological relationship to the church, and it’s easy to see if we focus in on that second phrase, “Purge the evil from among you.” Now read 1 Corinthians 5:13 in context:

I wrote to you in my letter not to associate with sexually immoral people — not at all meaning the sexually immoral of this world, or the greedy and swindlers, or idolaters, since then you would need to go out of the world. But now I am writing to you not to associate with anyone who bears the name of brother if he is guilty of sexual immorality or greed, or is an idolater, reviler, drunkard, or swindler — not even to eat with such a one. For what have I to do with judging outsiders? Is it not those inside the church whom you are to judge? God judges those outside. “Purge the evil person from among you.”

I hope the connections are plainly obvious here. To deny this is to ignore how the Bible is written. Our “judgement” is not oriented outwardly, it is oriented inwardly, and God is concerned with the holiness of his covenant people here on Earth. He will judge those outside, but that is for his timing. Since the mind of God does not change, we can read this understanding back into the Old Covenant and interpret that these laws were not given because they are necessary for civil justice, but because there were greater Covenant purposes for this nation of Israel, and that it doesn’t make sense to directly import them across Covenants in such a way.

Therefore, we have to realize that, on some level, the very act of trying to extract this list of universal civil laws from Moses is, in my strong opinion, bad hermeneutics. Don’t get me wrong! I do not mean this to imply that we ought to throw out the law or that there is nothing we can glean from it for this discussion, but that the task before us is far more complex than the simple rubric McIntosh has put forth. And if his rubric is not yours, then consider whether your rubric suffers from the same fundamental flaw.

That flaw is that the goal has been to try to gain specific, case by case, instruction as to what always must overlap from moral law into civil law. Unfortunately for the Theonomist, that was never the purpose of the Mosaic Law. Rather, as we interpret the Law within the broader context of God’s ordinance for civil government as connected by the endpoints of Genesis 9, and Romans 13 and 1 Peter 2, and within the broader context of God’s redemptive-historical purposes for Israel, and with the typological relationship that Israel has with the church in mind, and with respect to the fact that Christ is the King and judge, we are lead not to a specific list of laws that ought always to be enforced, but to a single guiding principle.

So How Do I Define Crime?

So what is that principle that ought to guide us in determining if a sin needs to be a civil crime? Ironically McIntosh has given us the answer! In fact because of this answer, I think I may be unfairly picking on McIntosh. He might actually agree with me, and just have expressed his thoughts in unclear terms! Even so, there are plenty of other Theonomists, even minarchists, who do not agree with me and do so on the basis of this or some other eisegetical rubric.

To begin with, he appeals to the Non-Aggression Principle in the very same paragraph where he lays out his rubric!

God distinguishes between sins and crimes. If a command is given without an attached punishment, then it does not constitute as a civil law. It’s a moral law that you should obey but not a law that civil rulers are to regulate. For example, covetousness is a sin of the heart whereas theft is an act of aggression against another person. The civil government cannot punish people for coveting but they can punish theft.

Notice that he doesn’t even follow his own rubric. He doesn’t say,

For example in Exodus 22:1, it says ‘Whoever steals an ox or a sheep and slaughters it or sells it must pay back five head of cattle for the ox and four sheep for the sheep.’ A person who steals is punished by paying back four or five fold, so stealing is a civil crime,

But in Leviticus 19:23-25 where it says ‘When you come into the land and plant any kind of tree for food, then you shall regard its fruit as forbidden. Three years it shall be forbidden to you; it must not be eaten. And in the fourth year all its fruit shall be holy, an offering of praise to the Lord. But in the fifth year you may eat of its fruit, to increase its yield for you: I am the Lord your God.’ – it doesn’t give a punishment. So eating the fruit of a tree within four years of planting it isn’t a civil crime, it’s just a moral sin.

Instead, he appeals to the non-aggression principle to divide between acts that are simply matters of the heart and acts that harm a victim! We know that all sin is a matter of the heart, even civil crime, but what takes sin out of the realm of simple morality and into civil crime is when it overflows to harm victims. McIntosh furthers this idea when he later describes the purpose and process of criminal justice as having the goal of restitution.

Punishment for crime is based on restitution (not imprisonment) and God tells us what the appropriate punishments are. A thief is to pay back double (Ex. 22:7). This restores the victim to a higher status than before and gives the criminal the chance to rehabilitate himself to an ethical lifestyle. Murderers should receive the death penalty […] Restitution can only be enforced if the victim presses charges.

How, I ask, can a victim press charges if there is no victim? So it seems that McIntosh has made my case much more strongly than I could. Even where we see things in the Mosaic Law that obviously, to the plain sense, overlap into civil crimes – as we would expect from the fact that this covenant community occupied the entirety of a civil nation – they have a common denominator: a human victim. And when a human is victimized, an act of coercive aggression has invariably taken place.

To enforce anything else you would either need private Pharisees to go around accusing people of things, or you need to deputize these Pharisees, giving them a badge and a gun, and have them go around accusing people of things. And the more private these behaviors become, the more these pharisees will need to use the tools of coercion and aggression in order to do their job, which is a terror to those who do good – not good in an objectively moral sense, as in they are righteous before God, but good in the sense that they have done no wrong to their neighbor.

Government is not by its very existence and nature a tyranny, as Rothbard believed, but when it steps outside its Biblical boundaries, it very quickly becomes such, and it need not stray very far. When government begins initiating coercive aggression on those who have not initiated coercive aggression on another, government becomes the criminal, and the private citizen the victim. This is what I oppose in government, and since it is the nature of any sort of moral, nanny-state law enforcement, be it the Drug War, the National Security State, or any other such law code, I oppose every government activity that is not a responsive prosecution to a person who has committed aggression against his neighbor. This also forms the backbone of my foreign policy beliefs.

Anything in the Scriptures that does not involve a human victim is clearly a matter of worship – especially in the Mosaic Law. To make such a thing a civil crime requires some hermeneutical or philosophical gymnastics. But it is plain that civil government was instituted by God to bring human punishment to those who wrong human victims. For the others, “Vengeance is mine, I will repay says the Lord.”

Therefore, I submit the following Biblical definition of civil crime:

That activity which, through force or the threat of force, brings direct and real harm to another’s life, liberty or property.

And the Biblical definition of Criminal Justice:

When someone (criminal) harms the life, liberty or property of someone else (victim), criminal justice is the act of compelling, through force or the threat of force, the criminal to restore such to the victim in equal or greater measure than before the crime was committed, and failing that to forfeit his own (i.e. the death penalty).

I thank you very much for sticking with me. I know this has been long, but I think every word has been necessary. I thought long and hard about breaking this up into two installments, but that, to me, felt like kicking the can. I have long needed to get these things out, and I hope that I have adequately explained my thought process.

The next installment is where it gets fun. See you on the tropical island!

Continue to Part 4 >