How does Biblical law create the strongest possible "Rule of Law"?
How Biblical law protects (true) liberty better than any other law system
“Rule of law” is a phrase that gets thrown around loosely, usually when someone is unhappy with something that a government is doing. There are three aspects of the rule of law (following, roughly, A.V. Dicey):
- “Rule of law, not men”: You can't be charged with a crime unless there is a law on the statute books making what you did a crime.
- Everyone, including all government officials, are subject to the same law.
- Certain basic principles (rights, liberties, etc.), cannot be altered or removed by the law-makers (or judges).
and to the above three from Dicey, we must add:
4. All judicial proceedings are open to the public for scrutiny.
Depending upon how many of these a civil government follows, we can say there is either a “strong” rule of law or “weak” (or non-existent) rule of law.
Let's pick an example government — the United States — and see how it measures up.
1. It is generally true in the United States that you cannot be charged with a crime unless there is a law on the books. Of course, because there are around 500,000 laws on the books, covering just about every aspect of everything that you do, this is not a problem for someone who wants to prosecute you. Robert H. Jackson was a former U.S. Attorney General and Supreme Court justice. He wrote:
With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm -- in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to, or in the way of, the prosecutor himself.
By the way, Robert Jackson wrote this back in 1940. Think things have gotten any better? Read the book Three Felonies a Day by Harvey Silverglate.
2. Unfortunately, government officials in the United States are routinely exempted from their own legislation, protected by immunity (e.g. "prosecutorial immunity") for various actions they take in office, and are often treated more lightly than other citizens for equivalent law violations.
3. Some rights/liberties are protected better than others. But ask any U.S. citizen: “do you feel confident that your rights are protected by the law, against a future Congress or Supreme Court session?” I think I know what answer you will get.
4. Most judicial proceedings in the United States are open to the public, however some are not.
Biblical Law: The origin and apex of the rule of law
It might surprise you to learn that Biblical law was the first known formulation of the “rule of law.” It was also the strongest ever formulation. No other law code has matched it. Look at the following restrictions on the king, taken from the book of Deuteronomy: 18 It shall be, when he sits on the throne of his kingdom, that he shall write himself a copy of this law in a book, out of that which is before the Levitical priests. 19 It shall be with him, and he shall read from it all the days of his life, that he may learn to fear YHWH his God, to keep all the words of this law and these statutes, to do them; 20 that his heart not be lifted up above his brothers, and that he not turn away from the commandment to the right hand, or to the left, to the end that he may prolong his days in his kingdom, he and his children, in the middle of Israel. Deuteronomy 17:18-20WEB
This law — that the king (and, by extension, any civil government official) is himself subject to the law — was "unique in the ancient Near East". Why?
The surrounding pagan cultures claimed that kings are the source of law. Scripture, however, claims that YHWH is the source of law.
In his book Created Equal: How the Bible Broke with Ancient Political Thought, Joshua Berman writes:
Alone among the literary works of the ancient Near East, the Hebrew Bible maintains that the law is of divine origin.
Combine this with the prohibition on adding to, or subtracting from, the law, and you have the strongest possible “rule of law” formulation: 1 Now, Israel, listen to the statutes and to the ordinances which I teach you, to do them, that you may live and go in and possess the land which YHWH, the God of your fathers, gives you. 2 You shall not add to the word which I command you, neither shall you take away from it, that you may keep the commandments of YHWH your God which I command you. Deuteronomy 4:1-2WEB
This is how you guarantee true liberty:
- You give families and individuals a broad mandate to do anything they want (which doesn't break the law) in order to subdue the earth (Gen. 1:28).
- You enumerate (and thereby limit) the powers of civil government to prosecute only the crimes written in the law (i.e. the judicial case laws).
- You require at least two actual eyewitnesses in order to bring any prosecution (Deut. 19:15).
- You don't give the judge (or the prosecutor) any discretion to "threaten" additional charges or "bargain" with the truth of the defendant's plea (Deut. 5:32, Deut. 17:19-20, Deut. 28:14).
- You command: “don't add anything to this law and don't take anything away,” (Deut. 4:2). There can be no legislation that creates or removes either crimes or civil government powers, period.
- You require that no part of the civil justice system happens “in secret.” Everyone can scrutinize whether the judicial process is fair and in accordance with Biblical law.
Your rights will always be guaranteed (as long as you follow Biblical law). If an action is not already prohibited, then it is legal. It may be unwise and even unsafe, but as long as you don't harm someone else (or violate an existing law), you cannot be stopped.
For example, under Biblical law, the civil government is never allowed to:
- Conscript you to participate in any warfare
- Force you to testify against anyone or torture you to extract a confession
- Regulate, prohibit, tax, or impose price controls on any voluntary economic exchange (obviously theft and fraud are still redressable)
- Force you to get permission from the government to enter into any contract
- Regulate or penalize the smoking, eating, or drinking of any substance (although you are liable for any crimes you may commit while under the influence of that substance)
- Force you to give “charity” to anyone
- Force you to send your children to a government school
- Force you to get permission from the church or civil government in order to get married.
- Force you to use a particular form of money for business transactions
- Force you to do business with anyone (or vice versa)
- Prohibit you from defending yourself or your family against attack, using deadly force, if necessary
Notice that there are no scripture references beside each item? That's because we're talking about things that the civil government doesn't have any scriptural authority to do. And there is no “general authority to do whatever” type of clause hiding in the details. Why? Because God had just brought his people out from under Egyptian tyranny, and he never wanted them to return to it: Deut. 17:16.
Under Biblical law, the civil government can bring justice in the case of specifically enumerated crimes (as long as two actual witnesses step forward to testify). It can also act to organize a (volunteer) military response to defend against an external threat. But it has no arbitrary authority to order citizens around and regulate their behavior.
Some people are so used to slavery, they might object that this seems “too permissive.” And that is why they are not the Legislators and never will be. Biblical civil law maximizes liberty within the constraints of God's justice. Modern states try to maximize a variety of things ("social justice," corporate profits, special interest giveaways, central government power, prison capacity, etc), but liberty is not one of those things.
If you are head of a household, and want to make your own household rules that prohibit certain things, that is fine. But you don't have the authority (under Biblical law) to impose your own personal rules on other households.
And if Biblical civil law disturbs you, don't worry. You don't have to live under it. Scripture makes clear that the kingdom of God is never spread by the use of force. Everyone living under a godly civil government will volunteer (happily) to put themselves and their property under its jurisdiction: Ex. 19:3-8, Deut. 24:3-8, Matt. 20:25-26.
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- A. V. Dicey, Introduction to the Study of the Law of the Constitution, Part 2
- Ska, "Biblical Law and the Origins of Democracy" in The Ten Commandments: The Reciprocity of Faithfulness, 148
- Berman, Created Equal, 59
- The civil government didn't even exist when God gave this dominion mandate.