The Westminster Confession of Faith and the Equity of the Judicial Law

The Westminster Confession of Faith states in Chapter XIX, “Of the Law of God,” section IV: “To them also, as a body politick, 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.” How do those who believe that God’s law has an abiding application to the political realm and who are also members of Churches that hold to the Westminster Confession of Faith reconcile this with the teaching of the Confession itself?

Much misunderstanding and misrepresentation exists over this passage in Chapter XIX of the Confession. The Puritans used the word equity to show in what manner the judicial law was still in force. It is a question of interpretation as to what they meant. But any interpretation that is to be considered reasonable must take account of how the members of the Assembly understood and used the judicial law in the Catechisms in explaining the meaning of what the Confession teaches and also of the wider understanding of how God’s law applied at the time that they lived. Any interpretation that fails to deal with these issues and relies merely on modern ideas that have arisen in different times and in a different context among people with different attitudes to the Christian faith and a different conception of Christian ethics will be anachronistic and fail to explain the meaning of the Confession. Modern pietists who accept the Westminster Confession of Faith insist on taking the term equity to mean almost complete internalisation, so that when they say the equity of the law remains, they mean that the Decalogue has to be internalised and adhered to in our personal moral behaviour, but that it has no external use or application, e.g. that it cannot be applied in the political realm because the State no longer has any duty to enforce such law. But this is not what the Puritans meant. When they came to explain in the Catechisms what the Ten Commandments mean and how they are to be applied they resorted to the very judicial laws that modern Reformed pietists say they taught had been abrogated. Look at the references in the explanation of the Commandments in the Larger Catechism: here they use the judicial case law to explain the Commandments.

Now, if the divines who put the Westminster Confession together meant in Chapter XIX.IV that the specific circumstances regarding the application of the case laws are different today and therefore the cultural details of their administration are no longer binding, I shall agree: for example, stoning is no longer mandatory or proper in contemporary Western society. The specific details of the administration of the judicial law, which are addressed to the Hebrews in a particular setting and period of cultural development, and therefore peculiar to that situation, are no longer in force, i.e. the mode of execution for capital offences. But the death penalty itself, the equity of the law, is still in force, and the mode of execution has to be appropriate to our own society whilst still doing justice to the equity—that is to say the general principle—of the law. Is this what the Puritans meant? I believe it is; and furthermore, in practice this is how they lived and what they did,[1] and they used Old Testament judicial case law to back up their arguments and to explain how the Decalogue should be applied. So I would accept the doctrine of the Confession on the equity of the law, as long as it is understood in context and the proper meaning of the word equity given. I interpret it in the following way:

The details of the application of the judicial case law are appropriate to the society in which they were originally given, a primitive agricultural society, but the equity of the law is universally valid. Therefore, stoning is not appropriate today, but the equity of the law, the death sentence for murder, is still binding. 

If anything less than this is meant by equity then I should have to disagree. Modern Reformed pietists think that the Puritans meant less than this, i.e. that the political application of the law has been abrogated altogether. But I doubt this. I think they meant that the circumstances under which the law was applied in the Old Testament period had changed and therefore that those details of the judicial law that were related specifically to that cultural situation, such as stoning, were no longer valid. But by equity I believe they meant the application of the principles embodied in the law, even to the civil order—in other words the political application of the law. Why do I think this? Because of the way they cite Old Testament case law, judicial case law, to explain what is required and what is forbidden by the Decalogue. For example, their explanation of the meaning of the Eighth Commandment includes the insistence on restitution of goods unlawfully detained, backed up by Old Testament judicial case law, viz. Lev. 6:2–5, which is followed by the citation of the New Testament instance of its application in Luke 19:8, namely Zaccheus’ restitution of his illicit gains from tax collecting. Also the Sixth Commandment, where they back up their interpretation by invoking the death penalty as set down in Num. 35:16–18 and 31–33; Ex. 21:18–36 and 22:2–3. Deuteronomy chapter 20 is cited to justify “lawful war” and Ex. 22:2 to justify necessary defence etc. 

If the Puritans thought that the judicial law was no longer applicable in any sense to their contemporary situation then why did they use it so much? And why did they argue from the Old Testament model to the contemporary situation? According to Peter Toon, John Owen, who was not a member of the Westminster Assembly, but who was an important theologian in the Commonwealth period—chaplain to Oliver Cromwell—and a leading figure in framing the Savoy Declaration, which endorsed the Westminster Confession’s chapter on the law, “. . . used and interpreted the Old Testament in a way which few would do today. For example, he deduced the duties of the Christian magistrate (i.e. the English Parliament) directly from the duties laid down in the Old Testament for the king of Israel; the compilers of the Westminster Confession of Faith also did this but it is significant that modern Presbyterian Churches have changed the chapter on the civil magistrate.”[2] Obviously, the Puritans believed that the civil law was valid in some sense for contemporary application. Though the details of its administration may have changed due to differing cultures and circumstances, its equity is universally valid. 

According to John Owen, in a sermon on “Christ’s Kingdom and the Magistrate’s Power” preached to the Parliament on 13 October 1652: “Although the institutions and examples of the Old Testament, of the duty of magistrates in the things and about the worship of God, are not, in their whole latitude and extent to be drawn into rules that should be obligatory to all magistrates now, under the administration of the gospel,—and that because the magistrate then was ‘custos, vindex, et administrator legis judicialis, et politiae Mosaicae’ [guardian, protector, and administrator of the judicial law, and of the polity of Moses], from which, as most think, we are freed;—yet, doubtless, there is something moral in those institutions, which, being unclothed of their Judaical [Jewish] form, is still binding to all and in the like kind, as to some analogy and proportion. Subduct from those administrations what was proper to, and lies upon the account of, the church and nation of the Jews, and what remains upon the general notion of a church and nation must be everlastingly binding.”[3]

In other words, it is only the Jewish form that has been discarded, but the institution itself, the equity if you like, is everlastingly binding “to all and in the like kind.” The judicial law, therefore, when stripped of its peculiarly Jewish appurtenances, is still in force, and it is the duty of the magistrate (the State), to make sure that it is enforced.

This is confirmed by the Confession itself. The only footnote to section IV of Chapter XIX, occurring at the end of the section showing in what manner the judicial law is still in force, begins by citing Ex. 21 and 22:1–29. This passage deals with judicial case law; i.e. it shows how the general principles of God’s law were to be applied to the concrete situation in which the Hebrews found themselves. It is judicial law—i.e. law enforced by the civil magistrate—in that it deals with issues such as compensation for grievous bodily harm, remedies for the seduction of an unbetrothed girl, theft and the appropriate form and amount of restitution, what constitutes the legitimate defence of one’s property and person against a burglar, what constitutes capital offences etc. Parts of this passage, as we have seen, were also used in the proof texts for the Catechisms to explain what is required by the Decalogue. The Confession corroborates its citation of Ex. chapters 21 and 22 by further proof texts from the Old and New Testaments, including 1 Cor. 9:8–10, which states: “Say I these things as a man? or saith not the law also? For it is written in the law of Moses, Thou shalt not muzzle the mouth of the ox that treadeth out the corn. Doth God care for oxen? Or saith he it altogether for our sakes? For our sakes, no doubt, this is written: that he that ploweth should plow in hope: and that he that thrasheth in hope should be partaker of his hope.”

Significantly, the citation of Exodus 22 stops at v. 29, where instructions are given for the offering of the first-born to God. The first-born son was to be given to God on the eighth day and redeemed, since the tribe of Levi took the place of the first-born sons (Num. 3:40–51). Verses 29–31, therefore, relate to an ordinance relevant only to the State of Israel before the coming of Christ since the Levitical priesthood was linked to the ceremonial law. What went before, however, and which was cited by the members of the Assembly as instances of how the equity of the law was still in force, is relevant to all societies at all times. 

It is plain from this that the framers of the Westminster Confession did not mean that the judicial law of Moses had no application whatsoever in the Christian age, but simply that those particulars of it that were peculiar only to the Jewish nation are now abrogated; but what remains upon the general notion of a Church and a nation must be everlastingly binding, to use the words of John Owen, and for this they use the term equity. And their understanding of equity, as is demonstrated by the proof texts cited in the Confession and the Catechisms, did not consist merely of the internalisation of the Decalogue, but involved the concrete application of the principles embodied in the judicial case law to contemporary society. 

But modern Reformed pietists use the term equity in a very different and in a technically and historically incorrect way (see the comments on the emergence of the Court of Chancery below). They mean simply that whilst the individual must personally seek to obey the moral law, the latter cannot be applied to the contemporary political order. I do not believe this is what the members of Assembly meant by their use of the term equity. It is a misunderstanding and misrepresentation of what the Confession teaches that fails completely to take into account the historical background and context of the Assembly. Today the term equity is used by Reformed pietists to empty God’s law of all its force in the political realm. This is not how the Puritans used the term or what they meant to say. The simply meant to indicate that those details of God’s law that were determined by the particular cultural situation of the Jewish nation at that time, such as execution of a murderer by stoning, which was culturally conditioned—the Israelites being in the desert wilderness (how could we have piles of stones covering dead bodies scattered throughout the land as a testament against evildoing, since this would contravene the Bible’s own good hygiene laws?)—were no longer binding, but that the law itself still had force. In other words they used the term equity to give the law contemporary political force, to show how God’s law applies to the political realm, whereas modern Reformed pietists use the term equity to empty the law of its contemporary political application, a usage that is technically and historically incorrect and anachronistic. 

Of course it could be argued with hindsight that the Puritans of the Westminster Assembly could have expressed themselves better and more clearly. But given their situation and the general belief at that time in the validity of the biblical code of justice I think they spoke adequately for their time. We live in an age in which biblical law is not generally considered valid. In the light of the way this terminology has been more recently used, or rather abused, it might perhaps be argued that we could today find a better terminology—just as the members of the Assembly said that the Bible contains the word of God (Shorter Catechism Q. 3, A), but meant that it is the word of God, so in a post-Barthian theological word we agree with the Puritans whilst seeking to use a more precise terminology that will counter the errors of our age. 

It must also be remembered that the Westminster Confession was not a Presbyterian confession, although it was subsequently adopted by the Presbyterians. It was the work of an assembly of Anglican divines who were, for the most part, moderate Episcopalians, with some prominent Independents, and it is largely the combination of the Thirty-Nine Articles and the Irish Articles of the Anglican Church.[4] The background to the Confession’s use of the term equity is not modern pietistic sensibilities, but English law. A basic principle of English common law is that “any law is or of right ought to be according to the law of God.”[5] However, the circumstances in which laws are initially made change. There is always a danger where the circumstances under which a law was originally made have changed sufficiently that to apply the law mechanically to these changed circumstances would lead to injustice, even though the letter of the law were to be adhered to. The purpose of equity was to address this problem. The three main common law courts were the Court of Common Pleas, the Court of King’s Bench and the Court of Exchequer. These courts separated from the King’s Council and acquired an independent jurisdiction. In a sense all these courts were originally equitable courts, but as the law grew and became more rigid and formalised there was need for principles of justice to be applied to situations that were not addressed by the common law and the Court of Chancery emerged in the fifteenth century to meet this need. Equity is applied therefore, where the mechanical application of the common law would lead to injustice or to circumstances that are not addressed by the common law. It was stated that equity applied only where “the law is directly in itself against the law of God or the law of Reason”[6] (which were, of course, considered to be virtually the same thing at that time). Equity was administered in the Court of Chancery, and the Chancellors, being mainly ecclesiastics, derived the principles of equity from the canonists. In 1489 the Chancellor, Cardinal Morton, said that “every law should be in accordance with the law of God; and I know well that an executor who fraudulently misapplies the goods and does not make restitution will be damned in Hell, and to remedy this is in accordance with conscience, as I understand it.”[7] The purpose of equity therefore was to ensure that justice was rendered in accordance with God’s law. This is the context in which the Assembly’s use of the term equity should be understood. This historical context does not support the modern pietistic idea that equity means merely internalisation of a moral principle that does not require its practical application to society by the civil magistrate.

The Puritans who framed the Westminster Confession of faith would have been scandalised by the antinomianism of the Christian Church today, including the so-called Reformed Churches. Here is a quotation from a sermon on “Christ and the Covenant” by William Bridge, one of the more prominent members of the Westminster Assembly: “Observe what those things are that are commanded by Moses in the Old Testament, and go unto Jesus the Mediator of the New Testament, for grace to perform them. There is nothing commanded in the Old Testament, but it is promised in the New Testament. There is nothing commanded by Moses in the Old Testament, but Christ the Mediator of the New Testament is engaged to perform it for you, and to give you strength to do it: the law commands and grace helps: ‘The law was given by Moses, but grace and truth came by Jesus Christ.’ Observe therefore, what that is that is commanded by Moses in the Old, and go to Jesus the Mediator of the New, for grace and strength to do the same.”[8]

The Westminster Confession and Catechisms bear this out in their citation of judicial case law to explain in what sense the law is still in force. So the issue is a question of interpretation, of understanding what the Puritans meant by what they said, that takes into account the historical background and context of their deliberations and words and that does not seek to force an anachronistic interpretation onto their words that is generated by modern pietistic antinomianism.

Answered by Stephen C. Perks

Notes

[1] See for instance John Cotton’s Abstract of the Laws of New England, published in London in 1641 (reprinted in Greg Bahnsen, Theonomy in Christian Ethics [Phillipsburg, New Jersey: Presbyterian and Reformed Publishing Company, 1984).

[2] Peter Toon, God’s Statesman: The Life and Work of John Owen (Exeter: The Paternoster Press, 1971), p. 177.

[3] The Works of John Owen (Banner of Truth Trust, 1967, Goold Edition), Vol. VIII, p. 394.

[4] See further Robert S. Paul, The Assembly of the Lord: Politics and Religion in the Westminster Assembly and the “Grand Debate” (Edinburgh: T. and T. Clark, 1985).

[5] This statement is recorded in a Year Book of Henry VII’s reign (cited in A. K. R. Kiralfy, Potter’s Historical handbook to English Law [London: Sweet and Maxwell Ltd, Fourth Edition, 1958], p. 33).

[6] Ibid., p. 160.

[7] Theodore F. T. Plucknett, A Concise History of the Common Law (London: Butterworth and Co [Publishers] ltd, 1956), p. 685f.

[8] The Works of the Revered William Bridge (Soli Deo Gloria Publications, [1845] 1989), Vol. III, p. 99.