Different Types of Law

Nomodiphas: I have an objection. I don’t think it is possible to use the Old Testament law as a foundation or guideline to making modern laws.

Philosophos: Why do you say that?

Nomodiphas: Isn’t it obvious? The Israelite society was very different from ours. They lived in different conditions and times and most importantly they were God’s chosen people. They made a covenant with God and had a state religion. They had laws regulating diet, a ban against wearing a garment woven from two different materials, and a prohibition against sowing two different types of seed in the same field. You can’t say that these are somehow necessary laws for our society or even that there is some guiding principle behind them that we need to take into account.

Philosophos: I would not make that claim.

Nomodiphas: These provisions are either silly or unimportant. How can we take other portions of the law code serious when it is surrounded by such ridiculous stipulations?

Philosophos: Let me ask you this: are there any ridiculous or unimportant laws in your city?

Nomodiphas: I don’t know.

Philosophos: Picture a man from some remote African village who had never been to your city, in fact had never been to what we would consider a modern, car centered city. Now, this man had seen cars before, but never to the extent that exist in a city. He had seen roads before too; there is a narrow, dirt road that skirts past the outside of his village. Now, imagine yourself trying to explain to him your city’s traffic laws. Speed limits, traffic lights, one way streets, right of ways, and parking regulations: all of these laws would seem ridiculous to him. He would not be able to appreciate the function that they serve for your city. These are not moral laws in the sense that prohibitions against murder or theft are, but they are necessary nonetheless for a modern city to function. Now imagine that you wanted to discuss other laws that your city has that deal with moral issues like bribery or the administration of justice. Would you not be offended if he disregarded what you had to say about those topics and told you that because of the inclusion of such unimportant, ridiculous traffic laws your whole law code was bunk?

Nomodiphas: I can see what you are getting at.

Philosophos: On its face it appears that you are making a rational argument, but in reality it is nonsense. Who is to say that our laws prohibiting various degrees of murder or rape are insignificant or unimportant simply because we have laws that regulate parking and have different zones of speed for driving? The greater laws are not any less important because of the presence of the lesser. The lesser are needed for a functioning society. In the same way, the lesser laws of the ancient Hebrew people were needed for their society to function in a mundane, day to day way. The inclusion of lesser laws does not take away from the greater ones. And just as we can differentiate between lesser and greater laws (or moral and functional laws) so too we can differentiate between the laws that constitute moral absolutes and those that merely ensured a functioning society for the ancient Israelites. And before you doubt the ancient Israeli law code, consider the results that it produced. The Israelites went from being slaves to a bonafide superpower after adopting this law code.

Nomodiphas: How do we tell the difference between these types of laws?

Philosophos: You tell me that, how do we know that murder is taken much more serious than traffic violations?

Nomodiphas: You go to prison for life for murder, but only get a small fine for a traffic violation.

Philosophos: True, most of the time the type of penalty tells us what type of law something is. For example in the Law of Moses there is no punishment listed for violations of health codes, but capital punishment is called for in certain sex crimes and in homicide. However, punishments are also proscribed for violations of religious matters (like working on the Sabbath). So we cannot look just to the punishments, we must also use a bit of common sense. Laws that deal with Israel’s religion, though they may be wise, are not mandatory for us to follow. These laws were rooted in the special relationship that Israel had with God and for that reason do not apply to other societies (we will talk more about this later). Administrational laws without punishment and religious laws do no apply to us. But laws that deal with matters of justice (property, civil law, criminal, etc) are applicable to us, for justice does not change.

Nomodiphas: What about the Apostle Paul?

Philosophos: What about him?

Nomodiphas: Didn’t he teach that the Christ ushered in a new law, a law of mercy, which replaced the Law of Moses?

Philosophos: Why yes He did. The Law of Moses emphasized God’s justice, the Law of Christ emphasizes God’s mercy. God was merciful even before Christ and in the same way continues to be just now. God is both merciful and just and both before and after Christ God has asked those of us who follow Him to be both merciful and just.

The Law of Moses was never a means to salvation, for no man could fulfill it. We have always been saved by grace, through faith. As we know the church as a different role to play than Israel. We are asked to emphasize God’s mercy. But this does not mean that we are not asked to live justly as well. It is true that in living justly we are not bound to obey the whole of the Law of Moses, for much of it was religious or cultural in nature, but we are to continue to obey God’s moral law.

The nature of justice has not changed. What is right or wrong was so for Adam and will continue until the last man. Cain knew it was wrong to murder Abel, God repeated this fact to Noah, it was in the Law of Moses, and Jesus affirmed this. Murder, because it is a part of God’s law has not changed. We still must not murder. Though the parts of the Law of Moses that deal with religious or administrative issues may be done away with. The Law of Moses contains the whole of the God’s moral law (or the natural law). Though much of God’s laws are repeated elsewhere in the scriptures, they are listed completely in the Law of Moses, which is why this is our best source.

Speaking of justice, justice is not a function of power. Leibniz said ‘it is agreed that whatever God wills is good and just. But there remains the question of whether it is good and just because God wills it or whether God wills it because it is good and just.’ If justice changes whenever God decides that it must, why do we praise God for being just? If justice is a function of power, then it is part of God’s nature and not His character, and it seems unnecessary that multiple times in the Bible God is praised for His justice. Why praise Him for being who He is, if everything He does is just, simply because He did it? God is praised for being just for it is a choice that He makes. God loves justice; it is something in which He Himself says He takes pleasure. If justice is whatever God wills, then justice is merely a function of power—whoever has the most power would be the most just, but this is contrary to experience.

Nomodiphas: So the Law of Moses contains the whole of the law of nature. However it also contains a number of administrative and religious laws. The law of nature is unchanging and is God’s explanation of justice to man. It is to apply to all societies in all times, but cultural and administrative laws are not required for all societies. Every society may make up these types of rules as they see fit. We can and should differentiate between these types of laws. I understand why we must follow just laws, but why must we follow laws that exist beyond the realm of justice?

Philosophos: Just laws are universal and apply to all peoples at all times, regardless of consent. Additional laws (like administrative laws) require consent. People come together and cede some of their rights in order to better protect their liberty. That is how governments are formed. It is from this freely willed consent that government derives its power. Specific, particular laws gain legitimacy when made by the government that the people have given some of their rights to. Governments have a lot of freedom in making administrative laws: they simply must first have the consent of the people and second, be sure their administrative laws are not unjust.

For example a right to a jury trial and the right to appeal a case are examples of just, but unnecessary procedural laws. They are just because they increase the likelihood that justice will be done in every case. An administrative law that said women have no right to call witnesses in their defense would be unjust because it would decrease the likelihood that justice would be done in a given case. So you see procedural laws can at times be just or unjust in regards to how they further substantive just results. However, most procedural laws are simply neutral for many decisions are arbitrary. We need to decide what side of the road we should all drive on. Justice doesn’t require one side over the other, so we simply decide. This is in no way related to justice, it must be decided one way or the other, but neither way is better, it simply must be decided by a legitimate government (one that rules by the consent of the people).

Remember, justice exists independent of the people, but administrative laws are only legitimate so long as they are not unjust (they need not be proactively just, but rather only not unjust) and consented to by the people.