Theonomy debate points: context, presuppositions, and the police state

Returning to the exchange I had at Georgia State Law School earlier this month: I want to follow up on some of the comments/criticisms made by my respondent, Prof. Timothy Lytton. In reading the following, it will be helpful to keep in mind that Prof. Lytton is of Orthodox Jewish practice, and thus provides a counterpoint to my Theonomy from the perspective of rabbinical Judaism.

What I found most interesting about Prof. Lytton’s perspective is that it offers similar criticisms against Theonomy and Christian Reconstruction as are often made by our Christian critics of various schools. Thus, a response to his comments will not only help put the nature of certain Christian responses in a particular perspective, it will also be helpful to many who are interested in responses to common criticisms against the position that Old Testament law provides abiding norms for civil governments today.

The particular criticisms in view include, first, the idea that the civil laws of the Mosaic code cannot be divorced from the rest of the Mosaic context. Based on arguments like this, several modern groups say you cannot divorce the civil laws from their context and apply it in modern times. They’ll each say this for slightly different reasons and with slightly different nuances, but they all say essentially the same thing. The second argument to be addressed here is that the law should only be applied in a way that balances justice and mercy, and that this necessitates that legal judgment be done in a fatherly or parental way—a way that essentially leaves justice undone.

I would like to address each of these notions as they were presented by Prof. Lytton and as a model for how to address them when they arise in our own broader Christian circles. One final thought before I do: I want to acknowledge that Prof. Lytton gave these responses impromptu, and thus I understand that it is probably a little in my favor to provide a response point by point after the fact. Sometimes in impromptu discussion, we don’t get a chance to nuance every statement as we would prefer upon reflection, and it is often easy to hack someone apart with the benefit of hindsight. I do not intend to hack anyone apart, and I want to be sensitive to these realities as I provide my responses below. I also want to add that I greatly appreciate Prof. Lytton’s participation in this discussion as well as his contributions to it. I found them helpful for clarifying these several points of agreement and disagreement, and I think the reader will also.

First, regarding my argument for the application of the lex talionis (“the punishment must fit the crime”) principle as an overarching principle of criminal and civil justice running throughout Scripture, Prof. Lytton responded that Mosaic principles are embedded in a specific narrative and should not be “pulled out from the context” in order to apply them today. In his words:

There’s a danger in overemphasizing the idea that the Hebrew Scriptures suggest principles of justice to us and that we should follow those principles. There’s a kind of caricature of the Hebrew Scriptures—what Christians refer to as the “Old Testament”—as a kind of legalistic document that involves a bunch of rigid principles; that underlying them, that have a certain truth to them, but the rigidity of them makes that legal system sort of archaic or superseded in the Christian mind frame.

I certainly agree that we should be careful not to overemphasize my point, or any other point. But I find it odd that this warning is followed by a reference to the fact that many Christians wrongly caricature the OT as harsh, rigid, and “legalistic.” While it is certainly true that many Christians make this mistake, it is nevertheless something the Professor and I would agree wholeheartedly is wrong and which hardly appeared anywhere in my presentation. But what he goes on to argue seems to assume that my thesis partakes of this view. It does not. He continues:

I would suggest it’s very difficult to read the Bible as a set of principles without understanding that those principles are deeply embedded in a context of narrative. If you read the Hebrew Scriptures, they are not a list of laws. And if you compare them to other ancient near-eastern texts of laws, you will see that the ancient near-eastern texts of laws are lists of laws: they read like the U.S. code. If you read the Hebrew Scriptures, they don’t read like the U.S. Code. They read like the story of a nation in which is embedded a set of laws.

Now, in addition, I would say that what the Hebrew Scriptures ask us to do is not so much look at the principles, they ask us to look at the behavior of the judge.

So I agree with Dr. McDurmon that it’s important to figure out “What do God’s judgments look like?” But when you do that, you have to look not at the principles pulled out from the context, but the judgments God makes in the context using those principles.

It is certainly true that there is such a difference between the Mosaic books and the other ancient law codes. Even the parts of the Mosaic book that include law codes and law cases read as more of a narrative that the others. Yet even the Professor acknowledges that within this narrative there exists a law code, or “set of laws”—or we could even say “a set of principles.” After all, even the U.S. Code is “embedded” in a narrative which is the “story of a nation.” Do we refuse therefore to apply the U.S. Code as a system of legal principles? No. It is still a law code from which we derive legal principles of justice as legal principles of just. Theft or murder today are absolutely no different than theft or murder in 1776.

The difference here is not law code versus no law code, or application versus no application. The difference is which law code and which applications. The chief questions are “How do we apply that law code in the modern world?,” and “What are the principles of interpretation by which we apply that law code?” In other words, we are back to the same perennial question: “By what standard?”

The Professor argues that the Hebrew Scriptures ask us not to look at the principles but to look at the behavior of the judge. Granting this in the whole for the moment, what does such a statement miss? It misses an all-important fact: the statement “we should not look at the principles but at the judge’s behavior” is, in and of itself, a principle. So, ha!, should we not look to it then?

Of course not. Instead, we simply acknowledge that every question of interpretation involves principles of interpretation, and thus, interpreting the application of the Old Testament law can never be divorced from the principles of the law itself. This is why Paul says, “We know that the law is good, if one uses it lawfully” (1 Tim. 1:8).

This means that analyzing and applying the principles of Old Testament law today is not, as the Professor’s response seems to state, de facto ripping the principles from their context. Instead, the biblical exegete’s job is to understand them within their context, understand them within the larger biblical context (both Old and New Testaments), and then apply them accordingly as the context determines.

The real question here, then, is whether “the context” determines whether any given Old Testament law has any application today or not, or whether any given applications are universal for all people and places, or whether, as the Professor seems to suggest below, that applications can be affected by subjective and personal-relative contexts—a dangerous, but all too modern, road.

He continues:

And those judgments involve not the strict or cruel application of principle, they involve a balance between what in the Jewish tradition is known as din, strict judgment, and rachamim, which is mercy [or compassion].

Again, I agree in principle, but so did my presentation as well as the strict principle of the law itself. The lex talionis in-and-of itself is a tool of mercy in regard to all parties. It is the greatest mercy possible to the victims because the crime is punished fully and restitution is paid fully where applicable. It is mercy even to the criminal because it prevents the state from imposing punishments beyond what fits the crime (which has been almost always the case historically, and is quite often the case even today). It is mercy to society in that crime is punished justly, and thus deterred, and yet not punished too much to impose a tyranny upon the innocent.

In the scenario of a crime or tort, the lex talionis is the most merciful solution possible. And thus, when applying biblical law here, there is no danger of being “cruel” or imbalanced when we apply the principles as strictly as possible. Instead, we are by definition being cruel and imbalanced when we don’t follow that principle strictly. In such a scenario, to add “mercy” beyond that for which God calls in His standards is to pretend we can be more merciful than God, and yet in the process render injustice.

In fact, when it comes to legal judgments in regard to civil government, mercy is exactly what God says not to do. He specifically says to avoid and reject “mercy” or “pity” in such judgments: “Your eye shall not pity” the offender when sentencing and carrying out sentence (Deut. 7:16; 13:8; 19:13; 19:21; 25:12).

This “no pity” standard being the case for civil law, departing from strict application renders one’s position inconsistent. And in fact, that is where I see the Professor going:

If we, according to the Jewish tradition, lived in a world where God’s judgments were a matter of strict justice, we wouldn’t survive, the rabbis tell us. We wouldn’t be here. Who could survive strict justice on that level? And if we lived in a world that was all about mercy and forgiveness, we would live in an anarchic world. So the rabbis tell us that if you look closely at God’s judgments, the application of those principles in the context of the narratives in which they are discussed, you will find a delicate balance between the so-called strict letter of the law and a contextual understanding and flexible, often mercy-ridden application of those laws.

We are supposed to be speaking of civil and criminal justice here, not social life and family life, “society” in general, or God’s historical sanctions upon a society. But these seem to be where the professor is going. Granted, if God chose to punish us strictly for our many sins, none of us would survive. But this is comparing apples to oranges in regard to our specific discussion of standards of civil government.

God can and does chose to be longsuffering with our society in history. Yet at the same time, He gives us a special revelation of what the standards of justice are to be. He gives standards for the civil realm just as He gives standards for personal, family, and church realms. We are to carry these out strictly as one means of averting the very historical judgment our society otherwise deserves. One of the many ways God shows us mercy as an overall society in history is through giving us many generations to repair our many injustices. But again, this demands that we return to a strict application of His standards of social and criminal justice, not otherwise. And we must recognize that the very giving of the special revelation of these standards is itself also an aspect of God’s mercy to us.

The Professor then adds,

The Jewish people would have never survived the trajectory through the desert if God would have been a strict judge, or would have been looking for principles, or if the Hebrew Scriptures were about principles.

Let us note that the vast majority of the Jewish people in fact did not survive that wilderness trek. The entire first generation with the sole exceptions of Joshua and Caleb died not having entered the Promised Land. This was not because they adhered to God’s law too strictly. It was precisely not because they mistakenly believed “the Hebrew Scriptures were about principles.” Indeed, just the opposite. They died in the wilderness because they tempted God, disobeyed His precepts, and broke His covenant with them.

The Professor then made an argument very similar to certain Christian critics, as well as many liberal scholars, today:

It’s instructive in this regard that, in fact, in the Jewish tradition we refer to God as Avinu Malkeinu, “Our Father, our King.” Not just our King—our Father; in fact, first our Father and then our King. The model of judgment—of legal judgment—in the Bible is one of parenting. You don’t parent your children by dictating principles. You parent your children by living in a principled home, and exercising a kind of judgment that balances fidelity to those principles with a kind of compassion for the person and the reality of the situation.

Some of you may have heard a very similar argument made by certain recent critics of Theonomy: we should no longer follow biblical standards of civil law strictly, but rather model civil government on parenting. Some children require different standards of punishment to render obedience. In other words, the model for civil government is the family, and the analogue to citizens is children.

The problems with this view are legion, and far more than I will take space for here. For starters, this confuses the biblical roles of family and state which are two separate covenantal institutions for a good reason. The family bears the rod under the judgment of parents. The state bears the sword under the judgment of juries, judges, and enforcing executives. They are separate institutions with separate (though sometimes overlapping) standards for governance. Under biblical laws, families are not allowed, for example, to execute offenders, and states are not allowed to mandate the intricacies of private life of citizens. Furthermore, as we have already seen, the state is forbidden by God’s law from showing “compassion” when executing civil justice. The state is an active agent of God’s wrath, not His compassion. To pretend that a “parenting” model supersedes here is not to improve upon God’s law, nor to apply it faithfully, but to break it. In short, parents are not civil authorities, and civil authorities are not parents.

Throughout history, whenever the state becomes a “parental” state, a tyranny ensues. When the state arrogates to itself the alleged affections of parents, and demands of citizens the loyalty and affections due from children, the conditions for tyranny are ripe. Think “nanny state,” and you get the picture. Further, a “father” state becomes a breadwinner and bread-giver to its “children.” As a parental state, it not only takes control of welfare, it becomes the dispenser of property and inheritance. Again, you get the picture. A parental state is a total welfare state.

This view has many problems, as I said, but one of the most important for our purpose here is that it throws the discussion of civil punishments off the rails of God’s revealed objective standards and into the relativistic arena of human autonomy. If the state assumes the position of reading every particular case and dispensing justice to custom-fit every individual “child” in any given case, it opens the can of worms that is relativism. Favoritism and partiality, for individuals or for a variety of favored classes, will follow shortly; and indeed, in every society that departs from God’s law, including our own, this is precisely what has followed. When you remind yourself that such partiality is being allowed to the agency of wrath and the sword, you can only understand that a police state, warfare state, surveillance state, etc., is on the horizon.

The Professor then moves on to express just such a relativism in regard to standards for civil justice. He says,

That’s very different than looking at the principle of the lex talionis as opposed to the way God thinks about and executes judgment regarding what would be a fair application of the principle in this particular context, which changes over time even in the 40-year sojourn in the desert.

I am not sure exactly what he is speaking of here in regard to changes during the 40-year sojourn, but we can be quite sure God never changed His revelation in regard to civil standards during that time. And while we may expect different cases to have different facts that receive different treatment for different reasons, we can be quite sure that the standards of judgment, procedure, and punishment do not change from case to case, or even from era to era.

The times may change, but God does not. While God changed many ceremonial and some civil aspects of the law in transition between the Old and New Covenants, there has never been, and never will be, a time when it can be said in regard to God’s law, “Get with the times.” No, the times need to change to conform to God’s law, for that is perfect righteousness.

Finally, the Professor concludes:

Furthermore, it’s instructive that the Jewish word for “law” in modern Jewish life is Halakha. Halakha literally means “the way.” It comes from the Hebrew word for “walk,” Halakh. Well, why would you refer to the law as “the way”? And the answer is because you don’t walk according to principles. Google Maps won’t get you there alone. The only thing that will get you there is to actually find your direction and then take your own particular journey there; it’s a way of life. Life in the law, at least as far as the Hebrew Scriptures wants to paint it, is not a life that revolves around the strict interpretation of principles or even the primary focus on principles. It’s a life that involves the incorporation of principles into a way of life that is highly contextualized.

It is very interesting, isn’t it, that the Professor contrasts walking according to principles found in the Bible with “a way of life”? This is, after all, a key argument Christians have been making for years: Christianity is not a list of rules to follow; it is a way of life.

Well honestly, I don’t care who makes such a contrast. I don’t see any necessary contrast between the two aspects. Yes the Bible provides a contextualized “way of life.” Every reading of every piece of Scripture necessitates that you read and apply it within the larger context of a biblical worldview: Trinity, creation, fall, law, redemption, ascension, consummation, etc., etc. Yet believing the “way of life” perspective does not in any way deny that the principles found within that way of life (i.e., biblical law) should not be applied today, nor does it change the standard of application, or the results if we are comparing apples and apples.

Again, if he is speaking of divorcing biblical principles from their context and abstracting them wrongly in some way, sure, I would join him in refuting such a monstrosity. But when we are talking about an abiding and underlying principle of justice itself which is universal to all times and all places, then we are doing an injustice by not applying it strictly today. To neglect that application is to open the door to relativism and humanistic autonomy.

Indeed, is this not where the Professor’s counterpoint ends up when he says “you don’t walk according to principles” but rather, “to actually find your direction and then take your own particular journey there”? This sounds a lot like a strong contrast between universal standards and subjective, individualized experiences. And of course, the great irony again is that such a statement itself is present as what? You guessed it: a universal principle.

As far as that goes, I would prefer to stand with those principles found in God’s revelation to man rather than purporting to find my own direction and my own way, and calling that “the way.” Because “the way” is either faithful to God’s word or it is not, and there is a way that seems right to a man, but in the end it is the way of death (Prov. 14:12; 16:25). And when you neglect God’s law, that prover stands true whether you’re an Orthodox Jew, west-coast radical two-kingdomite, Reformed Baptist, New Covenant theologian, or whatever.

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