a discussion of capital importance
[Unless otherwise noted, all quotes are from Bullinger’s Decades and have been lightly adapted.]
Good laws require good judges. Years ago, I attended a fascinating class on the theological underpinning for medieval legal theory. One of the more relevant discussions brought up in the class was the difference between common law and civil law. This has immense relevance for how we understand the various legal battles in the UK, in the EU, and in the US. The short version is that the UK and the US are using a very different legal system to the EU, though after joining the EU the UK attempted to function more like the EU legal system. Gross oversimplification, but not wholly inaccurate. Bullinger is operating within the framework of late medieval civil law, thus his understanding of the magistrate as judge is going to be much thicker than our understanding of judges in the English-speaking world today. But all that’s geeking out on history and legal theory. Back to the matter at hand: how judges judge.
Bullinger begins with the sermon with a thought experiment.
Suppose there were a commonwealth well furnished with the most absolute laws for both political matters and matters of religion. Suppose also that in that same commonwealth there were no magistrate to execute and, as it were, father those laws, by his authority to bring and reduce all the deeds and sayings of men to the trial of those laws, and that therefore every man breaks out into whatever life he wants for himself and does whatever he wants. Tell me, please, what good do those written laws do for the men of that country? Please believe me, not one halfpenny worth of good. Therefore, the best part of the magistrate’s duty consists in righteous judgment and punishing wrongdoing, and those two points require a man of courage and princely stomach. The Lord in his law describes such a man very perceptively, and it tells us what kind of man the Lord wants for this office.
In other words, we need both good laws and good judges to interpret and apply those laws. Remember, this is a civil law framework in which the judge’s job is to interpret and to apply the relevant laws. My American readers need not worry about Bullinger arguing for judicial activism. But good laws on their own are insufficient to provide the stability a society needs. Nor can judges judge on their own authority; they need the rule of law. Both law and magistrate are essential for a well-ordered society.
I think this gets to why we’re so fascinated with Batman and James Bond, or any other superhero or spy/thriller character. We love the idea of someone who is good, or at least not downright evil, who is above the law, who takes the law into his own hands. We hate vigilantes in old westerns, but we love being entertained by someone in our world who can just get done what needs doing. Without all the red tape of accountability and legal oversight. Bullinger would be baffled. How can one judge justly without a clear legal standard? And how can the law be applied well without a publicly-recognised and authorised magistrate?
He also urges that the magistrate is to be completely impartial. This is why the Americans portray Lady Justice with a blindfold, though in the British version the impartiality is implied by her clothing rather than a blindfold. Leviticus 19.15 reminds us not to show partiality to either the poor or the rich, a good reminder in our revolution-loving times. Justice is according to God’s standard, not the means or position of the one being judged. Proverbs 18.13 warns us not to rush to judgment; let both parties be heard before pronouncing sentence. Again, a needed caution in our kangaroo-court-of-social-media age.
What then is a judge to do?
To judge is to determine and pronounce truly and justly, according to the laws, what is good, what is evil, what is right, and what is wrong…. Parties blinded by emotion make straight things crooked, which the judge by applying the rule of equity and law straightens again, so that to judge is to straighten and to make plain. Moreover, to judge is, by defending and punishing, to keep in liberty. The magistrate judges, therefore, when he defends the innocent and bridles the hurtful person. But he must judge justly, that is, according to justice, and agreeably to the laws, which give to every man what belongs to him. The judge judges unjustly, when of a corrupt mind he pronounces sentence contrary to all law and equity.
What are the most common sins of judges? Partiality and bribery. Perverting justice for personal gain or to protect a particular interest. I love how 16th and 17th century Reformed pastors so carefully considered both the duties and the sins of the various positions in life they considered. We’d do well to continue this practice in our own day.
Bullinger also argues, against the Anabaptists, that using legitimate legal protection to avoid unjust suffering is permitted for Christians
It is without doubt good and right to suffer wrong with a patient mind, but because it pleases the Lord to ordain legal judgment to be an appropriate amount of help and support to those who are oppressed with injury, he sins not at all who seeks to keep himself from being wronged, not by private revenge, but by the righteous sentence of judges in law.
Private revenge is clearly forbidden, and this is really important for our doctrine of the lesser magistrate. Possibly more on that another time.
But then Bullinger gets into matters where he is clearly counter-cultural, at least according to our standards. Killing is sometimes commanded, as the law requires execution for certain crimes. Bullinger points to Saul’s failure to kill Amalek and Ahab’s failure to kill Ben-hadad. Failing to execute the judgement commanded by God resulted in judgment upon the one who failed to judge rightly. This is not merely an Old Testament understanding. Bullinger argues that the biblical metaphor for governmental authority is the sword precisely because of how a sword is used.
The sword in the magistrate’s hand is to be put into two uses: either he punishes offenders for doing other men injury or for other deeds, or he uses it in war to repel the violence of foreign enemies abroad or to repress the rebellions of seditious and contentious citizens at home.
The Apostle Paul makes this point painfully clear in Romans 13, and he does so against the backdrop of imperial Rome. There is a stigma against the death penalty in the west today among many Christians (especially in the UK and Europe), but it’s often sentimental rather than biblical. Whatever legitimate reasons there exist for scepticism about the death penalty, and there are many, all of those concerns would have existed in Old Testament Israel and in the various cultures in which New Testament believers lived. Regardless of either the customs or the beliefs of our own age, an absolute and moral opposition to the death penalty is simply not permitted for Christians, however badly judicial authority is abused in our own or another’s culture. It’s good for us to consider, which claims our primary allegiance: the authority of God’s word or our own cultural understanding?
Bullinger continues with both what crimes ought to be punished and what punishments are appropriate for the magistrate to use. He even argues against excessive rigor or cruelty in legal penalties. We might not agree with all the punishments he finds permitted or what punishments he finds acceptable for what crimes, but he does take care to look at the New Testament warrant for his views.
Let the magistrate punish dishonesty, vulgarity, filthy lust, prostitution, fornication, adultery, incest, sodomy, riotousness, drunkenness, gluttony, covetousness, deception, predatory interest (usury), treason, murder, slaughter of parents, sedition, and whatever else is like these. The law of the Lord, published by the ministry of Moses reckons up a catalogue of capital crimes in Leviticus 18 and 20. And lest perhaps someone may think, that today Moses’ law is utterly abolished, let him listen to St Paul, ‘The law is not given to the just but to the unjust, to sinners, to the unholy and unclean, to murderers of fathers and mothers, to manslayers, to whoremongers, sodomites, kidnappers, liars, perjurers, and if there be any other thing contrary to sound doctrine’ (1 Timothy 1.9-10).
I wonder, is our opposition to using God’s law as a warrant for punishing these sins and crimes because we think we’ve outgrown a scriptural understanding of justice, or because we know we ourselves would be caught up in this net of judgment? If all the various forms of immorality were punished as Bullinger desires, how many Christians would face legal proceedings? How many pastors would be publicly shamed for their failure to live as they’ve preached? Yet the hope of the gospel reminds us that repentance leads to renovation. 1 Corinthians 6.9-11 reminds us, ‘Don’t you know that the unrighteous shall not inherit the kingdom of God? Don’t be deceived! Neither the sexually immoral, nor idolaters, nor adulterers, nor the effeminate, nor homosexuals, nor thieves, nor the covetous, nor drunkards, nor slanderers, nor swindlers shall inherit the kingdom of God. And such were some of you, but you were washed, you were sanctified, you were justified in the name of the Lord Jesus and by the Spirit of our God.’ This is all of us, and most of us in more than one category. Praise God for the mercy of his Son and the cleansing of his Spirit…
It’s easy to dismiss the understanding of the Reformers and those of the early post-Reformation age as simply being a product of their time, especially when they also advocated capital penalties for religious matters. Bullinger was no exception, though he made sure to urge discernment between stubbornly unrepentant false teachers (in which case he recommended judicial punishment), and those who had been simply led astray (in which case he recommended gentle teaching and patience). But Bullinger’s vision for society, a vision he labours to draw explicitly from scripture, is one in which godliness is encouraged and wickedness is punished. He wants to see Christians live for a just world today, while also not forgetting that this world is fallen and will continue to be so till Christ’s return. And in this area there’s something of a paradox in our world today. Those who are most interested in public justice are usually the least interested in what God’s word has to say on the matter, and those most committed to God’s justice are usually the least interested in how that justice plays out in the public square. Perhaps in that, Bullinger can be a useful corrective.
Next, on the magistrate and just war theory
