“Then Jonathan said, ‘My father has troubled the land.’”
Strange as it may sound, a main theme running through chapter 14 is that proper civil government must originate with the people. This is not to deny the divine origin of law and government, but rather to argue that the practical execution of God’s Law and godly government in human society must not be left to a professional elite, an establishment, etc. Instead, godly government can only arise amidst a godly people.
On the flip side of this, when wicked kings rule you can guarantee it is an expression of wickedness in the populace. This leads to two phenomena: first, the abandonment of God’s Law in civil government leads to the creation of arbitrary statutes, usually in an effort to glorify and perpetuate the greatness of the wicked establishment, or special interests associated with it. Second, along with this comes and ever-increasing difficulty of returning to liberty before total tyranny or social collapse comes about. This latter phenomenon itself has two parts: 1) efforts at restoration and revival will almost always have to originate as grassroots efforts. These will at first comprise a minority, and the minority will have to fight uphill. This we saw in the last sermon. 2) The longer tyranny is allowed to creep, the more entrenched it becomes, the more evil it does, and the more difficult it becomes to remove. Yet even here we will see that God can move even complacent masses to withstand tyrants and override tyrannical laws.
In the last sermon we mentioned that there are two great grassroots movements in chapter 14. The first was Jonathan’s armed civil disobedience which we covered there. The second we held for now. This is the people’s deliverance of Jonathan from the arbitrary death penalty his own father Saul imposed upon him. This was no doubt inspired by the leadership and example of Jonathan up to this point, as well as in much of what shall come.
But this movement comes in the midst of the growth of darkness in Israel. And whereas both grassroots movements in chapter 14 give us tremendous inspiration, the rest of the story carries also a grave warning about the growth of tyranny—which can occur even as we experience grassroots successes. In this narrative we see two of the chief means and ends of tyranny. They are deadly enemies of freedom. They should be avoided, opposed, and fought against at all costs for the sake of liberty. These are 1) a civil law versus a common law legal system, and 2) the thing which Randolph Bourne once called “the health of the state,” war.
Saul the Pharisee
Some Bible commentaries and Bible headings refer to 14:24 and following as “Saul’s rash oath,” or something similar. The oath was indeed hasty and not well thought out. Apparently in an effort to keep the men focused upon finishing the task of defeating the Philistines, Saul placed an oath upon his men. It was a prohibition upon all food until, as Saul put it, “I am avenged on my enemies” (14:24).
Not much good could come from such a law. There was no “blessing” for the fulfillment of this oath, only a curse should anyone disobey. Here is yet another fear-based tactic from Saul. It was a drastic measure for a short-term goal. It was hardly based upon God’s Law for warfare, and thus was arbitrary, man-made law. It was therefore humanistic. It was also unwise; even as a pragmatic measure it was poor. Knowing that men need food for energy and strength, what commander would forbid his men eat until after the strenuous fight is over? No wonder the men were faint after chasing and battling the Philistines for several miles (14:31). Note also, once again, Saul’s self-centeredness. This was about personal vengeance: “I” and “my.” The enemies were his, personally, not Israel’s as a whole. Saul was willing to put soldiers’ lives at risk—sending them into a contest of arms enfeebled by lack of sustenance—for the sake of his own pride and glory.
Putting all of these things together is instructive. Saul 1) imposed an oath, 2) complete with the sanction of a curse, 3) based on arbitrary law, 4) for the sake of his own vengeance. What we have here is Saul behaving like a god—he is doing all the things which were God’s prerogative to do: originate law, impose covenants with sanctions, and declare that vengeance is His. Remember that the people had rejected God from being king over them (1 Sam. 8:7), and God warned them of the “way” of king they did want. This way involved a series of measures that were all rejections of God’s Law. Saul’s ridiculous oath in this case is a perfect example of the type of nonsense governments impose once they have set aside God’s Law. It is a classic example of “the state as God.”
Saul was the Pharisee of his day. The essence of Pharisaism is as Christ denounced it:
“The scribes and the Pharisees sit on Moses’ seat, so do and observe whatever they tell you, but not the works they do. For they preach, but do not practice. They tie up heavy burdens, hard to bear, and lay them on people’s shoulders, but they themselves are not willing to move them with their finger. They do all their deeds to be seen by others. For they make their phylacteries broad and their fringes long, and they love the place of honor at feasts and the best seats in the synagogues and greetings in the marketplaces and being called rabbi by others” (Matt. 23:1–7).
Both general parts of this fit Saul perfectly well. He sat in the seat of the Law, and thus has the legitimate authority of office. Yet he abused that authority by imposing burdensome, extra-biblical laws upon the people. Ultimately, Saul’s administration was about Saul. He loved to be honored and revered by his peers—a trait which will appear more pointedly in the next chapter.
Few people remember that the Pharisees were civil rulers of their day, and thus many of Jesus’ critiques of them, as well as their murderous roles with Christ and with the apostles in Acts, pertain to their civil policies and traditions which had abandoned God’s Laws. For example, Christ criticized their financial scheme which allowed people to neglect the financial care of their parents under a religious guise:
And he said to them, “You have a fine way of rejecting the commandment of God in order to establish your tradition! For Moses said, ‘Honor your father and your mother’; and, ‘Whoever reviles father or mother must surely die.’ But you say, ‘If a man tells his father or his mother, “Whatever you would have gained from me is Corban”’ (that is, given to God)—then you no longer permit him to do anything for his father or mother, thus making void the word of God by your tradition that you have handed down. And many such things you do” (Mark 7:9–13; cp. Matt. 15:3–6)
The Pharisees were standing in a long tradition which could be traced back at least to Saul, but certainly earlier if we regard the non-Israelite ungodly seed: Cain, Lamech, Canaan, Nimrod, etc. The common thread upon which they all turn is the attempt to take dominion in society for their own glory apart from God’s Law-Order. The practical outworking of this always manifests in the creation of a rival law. This new law is almost always arbitrary, man-made and thus humanistic, and self-serving for the glory of its human creators. It usually places heavy burdens upon society, is based upon fear, maintained by fear-mongering, and enforced by fear tactics. This doesn’t mean it will always be unpopular. People may accept it, support it, promote it. But the nature of it as tyranny will remain.
What we see here is the clash between rival legal systems: biblical law versus humanistic law. As we will discuss in a moment, the historical expressions of these appear in the “common law” tradition and the “civil” or “statute law” tradition. By “civil law” here I mean a specific legal tradition as opposed to my normal use of the phrase which means more generally the law of the state as opposed to family or church, etc. Here it refers to a specific type of law of the state. We can substitute the near synonyms “statute law” or “positive law,” though these depart from the historical origin. As we shall see, these systems generally correspond to two views of government: one in which God is sovereign, and the other in which man is sovereign and decrees his own laws. The first is godly, the second pagan and infernal.
When the people in 1 Samuel 8 demanded a king like other nations, little did they know the extent of what they were asking for. But sure enough, once Saul was in power, he began acting according to this humanistic “statute law” tradition. Biblical Law and biblical jurisprudence were trampled underfoot. Saul’s case in particular exhibits just how quickly such a system can become extreme. In this case, you could argue it was martial law, or military code. But not only was it unwarranted and unwise, it was extreme. The minor infraction of eating before Saul was vindicated carried with it the maximum penalty: death. How arbitrary is tyranny, and how tyrannical is arbitrariness!
It is no wonder that when Jonathan learned of this law—through innocent violation of it—he proclaimed, “My father has troubled the land” (14:29). The word for “troubled” here is not terribly uncommon, but is used selectively enough to suggest a biblical-theological parallel. The most interesting is the sin of Achan from Joshua 7. Joshua had commanded the people not to take any silver or gold from Jericho because it was dedicated to the Lord. Stealing any of this would “make the camp of Israel a thing for destruction [“a curse”—KJV] and bring trouble upon it” (Jos. 6:18). When Achan did so, the men of Israel fell in battle. Joshua sought the Lord and discovered there was sin in the camp. He discovered the culprit by lot. He then confronted Achan saying, “Why did you bring trouble on us?” (Jos. 7:25).
The parallel with our narrative here should be fairly obvious. Saul makes a decree which Jonathan breaks. God refuses to answer when Saul inquires of Him, so Saul deduces that there is sin in the camp. He discerns the offender by lot, a confrontation ensues, and the death penalty is pronounced. But notice the differences this time. Saul was not relating a command from God and for His glory as Joshua had done. Saul’s decree was from himself and for himself. God answered Joshua directly, but not Saul. Joshua is the faithful leader through whom God brings victory, while Achan is the selfish one who troubles the land. In our narrative here, Jonathan is the faithful leader, even though he ends up breaking the decree. On the other hand, Saul is the one who is said to have troubled the land. Saul is the selfish one who breaks God’s Law and acts according to his own.
As we shall see in a moment, Saul’s troubling of the land almost ended up costing him his own son—his own flesh and blood. He was in fact prepared to execute Jonathan to uphold his ridiculous oath. Thus the proverb employs this same word to say, “The merciful man doeth good to his own soul: but he that is cruel troubleth his own flesh” (Prov. 11:17 KJV). Anyone familiar with the end of 1 Samuel will understand this from a few verses later: “Whoever troubles his own household will inherit the wind” (Prov. 11:29). It makes me wonder if Solomon was pondering this narrative when he wrote these proverbs.
Lawlessness and tyranny
By the time they had beaten down the Philistines the soldiers were extremely faint. They judged themselves to have met the conditions of Saul’s oath and so indulged in food. But what follows illustrates one of the natural consequences of a Pharisaical legal system: once God’s Law is supplanted with man-made regulations, people grow confused as to what law is. They forget God’s Law altogether. This leads to the corruption of social mores, and consequently, social order. This is exactly what happened with the soldiers: The people pounced on the spoil and took sheep and oxen and calves and slaughtered them on the ground. And the people ate them with the blood (1 Sam. 14:32). This was a violation of both Mosaic Law (Lev. 19:26) and the Noahic Covenant (Gen. 9:4).
This had both physical and psychological aspects to it. The psychological side we have already mentioned. When the government corrupts law it devalues law, which means it devalues God. When subject to such a judgment, the people can grow to devalue law in general themselves. Their behavior reflects this. But the physical side is important as well. This pertains to those great burdens Pharisees tend to lay upon people’s shoulders. Saul’s statute was too much to bear. If forced the people to the point of physical weakness. It was de facto slavery, and the slaves had been worked nearly to death. When they finally came upon their opportunity to eat, their slavish condition led them to throw all convention out the window. God’s Law probably never crossed their minds. If it did, they obviously did not care. Either way, humanistic law had caused God’s Law to be devalued and ignored.
Humanistic law also has a way of compounding humanistic law. Saul to his credit recognized the infraction and moved to rectify it. But notice that the nature of his solution was that of central planning and central control. He caused all of the people not only to stop the sin but to bring their animals only to his altar to be slaughtered. In other words, the government decided it needed to observe and monitor the killing and eating of the animals in order to ensure the people did not commit this infraction again. This is one more step in the state’s attempt to play God. Once the corruption of the legal system leads to corruption of social mores, the state then pretends it must also take charge of public mores. Every behavior must be monitored and inspected for government approval. In this case, everyone must line up at the at Saul’s FDA in order to make sure their meat is butchered properly. Now the people are not even allowed to eat without the government’s nose in the matter first. The state never admits it created the problem to begin with. As this progresses over time and from one issue to the next, the tyrannical state creeps closer to the total state.
Thankfully, Saul’s administration had not yet reached the point of the total state, and there was enough common law sense among the people to prevent the filicidal tragedy which would have otherwise followed.
Once Saul recognized there was sin in the camp, he moved to find out whom. He does not appear to have ever considered whether it was his own. He in fact does not seem to think it was in his administration, particularly his assumed heir to the throne, Jonathan. He is so confident in his assumption that he gets a big mouth: “see how this sin has arisen today. For as the Lord lives who saves Israel, though it be in Jonathan my son, he shall surely die” (14:38–39). He would not have boasted so had he suspected up front that Jonathan was the man. The fact that no one answered him shows that they were protecting Jonathan. They were not going to turn him over to death for such nonsense.
Saul chose to discern by lot. He still presumed the innocence of himself and his son. Thus he set up the drawing by placing the rest of the leaders on one side and he and Jonathan on the other. He had to have been shocked when the lot fell on his side. But God has a way of often embarrassing Saul publicly, even, as we shall see, in having him caught with his pants down.
It should not surprise us that God here honors Saul’s lot and reveals accurately that the “sinner” was Jonathan. This does not give God’s sanction to the content of Saul’s law, but rather upholds the legitimacy of his office. Just as Jesus said of the Pharisees, “The scribes and the Pharisees sit on Moses’ seat, so do and observe whatever they tell you, but not the works they do” (Matt. 23:1). Jesus was not condoning their laws, but their office. Same here with Saul. God was upholding his office. But this is even more damning of Saul. The office is God’s office after all (Rom. 13:1), and the official is to submit to God’s authority, not assert his own. This was a test for Saul: would he obey God’s Law or uphold his own tyrannical law and execute his own son? By determining the lot as He did, God made sure Saul knew that God was in the midst of it.
Yet Saul failed the test. He was not fazed by the surprising outcome of the lot. Like any tyrant in a religious culture, he must have assumed that any positive input from God was confirmation of his own system. At any rate, Saul never questions himself. He never questions his law: he asserts it to the max: “you shall surely die, Jonathan” (14:44). This is another god-like pronunciation, repeating the exact phrase God used with Adam at the tree of the knowledge of good and evil. It’s a special emphatic construct meaning literally something like “dying you die” (Gen. 2:17). This is not wrong to use, of course, as long as it is used lawfully (1 Tim. 1:8). But Saul’s usage was to vindicate his own corrupt law and also to save face for having said he would root out the sin even if it was his own son. Here is a corrupt government far out of line and yet enforcing its bad law with the god-like pronouncements of life and death.
But this is where Jonathan’s previous courage and heroism ultimately paid off. He had inspired the people. It was his leadership, his civil disobedience, his grass roots movement which had routed the Philistines. The people remained inspired by him. They revered him for what God had just wrought through him. And that second great grassroots movement in chapter 14 that I’ve mentioned arises here. These people sensed that something was wrong with this scenario. They rose up in unison the very moment Saul pronounced the death penalty:
Then the people said to Saul, “Shall Jonathan die, who has worked this great salvation in Israel? Far from it! As the LORD lives, there shall not one hair of his head fall to the ground, for he has worked with God this day.” So the people ransomed Jonathan, so that he did not die” (1 Sam. 14:45).
This was an example of successful checks and balances in government. In fact, it is an example of one of the most important checks on government power: jury nullification. While the text says this was “the people,” the gathering was really just of the leaders of the people (14:38). This was a representative assembly, probably primarily of military leaders. Yet they would not allow Saul’s wicked military statute to be enforced. They acted as a jury in this impromptu court case in which Jonathan was on trial. God and Jonathan both testified as to the facts. Saul then unilaterally pronounced judgment according to his own laws—both statute and penal sanction. But the jury overrode Saul with a common law judgment that honored God’s higher law, and nullified Saul’s statute in this case. Most people are not aware that juries have the power to judge both fact and law in each individual case. In fact, juries today are wrongly instructed by prosecutors and even judges that they cannot judge law, only fact. This is a lie they are legally allowed to promulgate. Here we see an ancient historical example of God’s people upholding godly justice in the face of tyranny through the practice of jury nullification.
The Entrenchment of the Establishment
The rest of the chapter describes Saul’s reign in generalization. Verses 47–48 describe continuous warfare and continuous victory. This seems strange considering God had rejected him already in the last chapter. Nevertheless, Israel experienced grand success in battle through this period. Verses 49–52 describe the growth and entrenchment of Saul’s establishment. “Abner the son of Ner” is mentioned here for the first time. He was Saul’s cousin, and thus we see something like cronyism and nepotism develop. “Abner the son of Ner” is a funny phrase, also, because it literally means “My father is Ner.” He will end up in conflict with David over the legitimacy of the throne in 2 Samuel 2. Abner wanted to continue the family dynasty and reject David, but it would not be. While family members made up the inner circle, Saul brought all of Israel’s finest into his administration and army: when Saul saw any strong man, or any valiant man, he attached him to himself (14:15). This was probably not limited to Israelites. Saul likely took the valiant men from other nations as well. We find Doeg the Edomite playing a key role later in chapters 21–22.
I think the two phenomenon generalized here are related. Saul’s successes in battle led to his growing popularity with military and elite leaders in Israel. His administration grew and entrenched itself as a de facto establishment. But we have to remember that God had already decreed Saul’s replacement, and in the every next chapter will come utter and final rejection. Yet Saul’s establishment remains entrenched until the end of the book. This should remind us of an earlier lesson in which we warned not to draw false messages from temporary successes. This is tremendously important in that so much political strife is generated against David when he appears, and after Saul’s own personal attacks, much of it either originates or is channeled through the vast establishment that is “attached” to Saul. Thus an unfortunate amount of corruption and crime is generated because of an allegiance to a “successful” and powerful yet utterly God-rejected establishment.
1. Understanding biblical Law in a corrupted society
Well has R. J. Rushdoony noted that “in any culture the source of law is the god of that society.” With the backdrop of Christian theology, this fact means that all legal systems fall into one of two categories: theonomy or autonomy, that is, God’s Law or self- (human) law. This stark choice was presented in our era by the theologian Cornelius Van Til, who wrote regarding ethics in general: “There is no alternative but that of theonomy and autonomy.” Greg Bahnsen applied this as one of the face quotations for his book, Theonomy and Christian Ethics. Whether or not Van Til himself extended this specifically to civil law, or even if he had denied that one should, is not really to the point here, though he did make a very generalized statement which covers it: “we hold all authority to have disappeared in the realm of ethics unless one places the transcendent God of Scripture back of all ethical law.” The phrase “all ethical law” we would think to include civil law as well. Thus we can say that family law, church law, and civil law must all submit to and be expressions of the Law of God. Or we should say, more starkly, all of these will inevitably be expressions of either theonomy or autonomy. There is no middle ground here.
This simple fact in regard to civil law (the law of the state) renders jurisprudence one of the most important fields of study in human experience. And it is sad to say that such a study reveals the vast majority of civil laws in history to have been, and to be, expressions of some form of human autonomy. It is no wonder the age of peace is yet in our future (Isa. 2:1–4), as it will be based upon God’s Law flowing from the church. And it is no wonder that the most self-consciously humanistic century in human history has also been its bloodiest. The world has rejected God’s Law for an array of human devices, and it has suffered the curses of disobedience. But I am preaching application too soon, I see. We can find the basic errors of law which have given rise to such misery through our study of jurisprudence, particularly asking the question of the origin of our laws. When once arriving through that study at the feet of Aristotle, or Montesquieu, or Rousseau, or even Blackstone, Locke, or Jefferson—it does not matter—if a law does not derive from and honor God’s Law, it is Pharisaic and thus satanic (cp. John 8:44). It will breed tyranny of some sort if not soon corrected.
One of the outgrowths of Pharisaism we noted is the binding of huge extra-biblical burdens on people backs. Such legal systems tend to multiply laws upon laws in an effort to exert the will of the sovereign in every area of life. Laws multiply exponentially. Institutions multiply. Bureaucracy comes to the fore. Courts, lawyers, legal specialists, and then legislators, politicians, and lobbyists dominate public life. Eventually such a state grows into a total state: people are subjected to reams of rules. Liberty fades, privacy suffers. State-dependents multiply. Such a state ends by 1) failing in war, 2) bankrupting itself, 3) running into civil war through its own inner contradictions, or 4) a combination of all the above curses.
Compare such a state to one patterned after God’s Law. Simply put, God’s revealed civil society was one in which His Law was basic and general in regard to the protection of life, family, liberty, and property. It was codified in only a few commands and case examples of how legal judgments and sanctions should be applied. In practice, cases were decided under the rule of law when tried before judges and a jury. The facts of the case would be compared to the Law of God and judgment would be determined by deduction and analogy from that Law. In this system, there are no endless sessions of legislation, no battles of special interests to impose new taxation and legislation, no reams of legal code, etc. Instead, justice was dispensed case-by-case in line with biblical principles.
The contrast described here is the classic but rarely taught distinction between the “common law” and “civil law” traditions. While these terms are sometimes used in different ways, they generally represent two distinct forms of government: one biblical, or closer to biblical law, the other purely humanistic and leading to tyranny. A helpful review from Berkley Law School (of all places) explains the basic difference:
Common law is generally uncodified. This means that there is no comprehensive compilation of legal rules and statutes. While common law does rely on some scattered statutes, which are legislative decisions, it is largely based on precedent, meaning the judicial decisions that have already been made in similar cases. These precedents are maintained over time through the records of the courts as well as historically documented in collections of case law known as yearbooks and reports. The precedents to be applied in the decision of each new case are determined by the presiding judge. As a result, judges have an enormous role in shaping American and British law. Common law functions as an adversarial system, a contest between two opposing parties before a judge who moderates. A jury of ordinary people without legal training decides on the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict.
Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense. Such codes distinguish between different categories of law: substantive law establishes which acts are subject to criminal or civil prosecution, procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes.
This is, of course, the review of a modern secular law school. It is remarkable as far as it goes, but it does not touch on the religious aspects and history behind these two systems. Or this we turn to the work of a specifically Christian scholar of common law. He writes,
The common law stands or falls on individual liberty of conscience as informed by Scripture; the civil law rests on the imperial will of the state as set forth in human legislation. The will of the state is the will of a man or a combination of men expressed by legislation. The controlling feature distinguishing the common law from civil and the basis upon which the common law continues, however, is consonant with Scripture: God alone is Lord of the conscience.
The reason for the disparity between these two systems stems directly from the origins of law for each system:
The common law rests upon justice administered by scriptural principles that presuppose and guard against the inherent imperfections of human reason. The civil law, on the other hand, justifies its methods by presupposing and appealing to man’s notion of perfected reason. . . . [L]aw is the will of man as expressed in the state’s legislation.
In short, each system of law reflects the god of that law. In this case, a common law system presupposes a higher law that transcends humanity and is common to all of creation. Its God must ultimately be the God of the Bible. The civil law tradition is derived from man, and thus represents the attempt of men to play God.
The first assertion of human autonomy was of course with Adam and Eve using their own judgment instead of God’s clear revelation in regard to the forbidden fruit. The clearest introduction of human autonomy in the realm of civil law, however, if we can use that term here, is with Lamech. We presume it is the case with Cain as well, who built the first city, but with Lamech we get the first biblical record of a self-glorifying, arbitrary civil law: Lamech said, “I have killed a man for wounding me, a young man for striking me. If Cain’s revenge is sevenfold, then Lamech’s is seventy-sevenfold” (Gen. 4:23–24). God-defying humanistic law is thoroughly at work by the time we reach Babel (Gen. 11), and afterward totally characterizes pagan governments. Later it was expressed in both Greek and Roman law, and came to dominate continental legal systems influenced by Rome. Only in Britain was the common law system developed consciously under strong Christian influence for a long time. This was imported to the U.S. and the rest of the former British Empire. The rest of the world, especially that falling under Roman Catholic influence, followed the “civil law” system. Thus the French Revolution and the revolutionary traditions following it are thoroughly infused with humanistic law imposed through massive legal codes. These are essentially little Babylons.
The American tradition was strongly influenced at many levels by the British common law tradition. It is more consonant with Scripture, and has the potential to be returned to a biblical law society. But over time, many elements and institutions built on the statute law tradition have been imposed in various ways. Most municipal and state laws have grown so vast and complex in their codifications that even our common law courts end up operating like the rival system. The federal government began very early to create bureaus and institutions populated with unelected leaders who can essentially create new law through the delegation of regulations from Congress. An early example was the national bank, but over time we have seen the erection of tyrannical bodies such as the IRS, BATF, FDA, EPA, ED, HHS, HUD—the list includes scores more. The result is thousands of new pages of administrative law created every year. There are courts erected merely to deal with this type of law. Some agencies like the IRS and the various state agencies generally known as Child Protective Services have such powerful and independent codes they can operate almost as a law unto themselves.
At the forefront of our vision of a biblical free society must be a return to the common law ethic. A biblical law system is a common law system in which God is supreme and laws are few. This is not to say that we should rush and embrace everything that calls itself “common law,” even if it comes from other Christians. Biblical law must be the focus. But a biblical law system will in fact be a common law system. In short, biblical law is common law, but not all “common law” is biblical law. We must work to restore the vision of biblical law legal system and courts, and to oppose and replace the tyrannical systems of codification, regulation, bureaucracy, administrative law, etc.
2. Biblical law is opposed to both Pharisaism and antinomianism
We saw Saul’s oath wreak havoc with public morality and mindfulness of God’s Law. From this we should learn of the potential for wicked, extra-biblical, humanistic laws actually to destroy public morality, not to mention freedom, rather than protect it. Once people are conditioned to forget the Law of God, they soon also forget the God of the Law. But they have to replace Him with something. They grow dependent upon their human lawmakers to teach them how to behave. This leads to the rise of “big brother” or the nanny state. Their hearts’ allegiance turns from God to their benefactor and leader, the state. They want to be corralled; they wanted to have a dictator. This is the fallen man’s attempt to worship God, except he is actually running from the true God, hating Him and suppressing the truth of Him (Rom. 1:18; 8:7). He is instead worshiping a false God made in his own image and imagination, the state. This arises from the heart, and thus in many cases it is subconscious. As such, those who live this way would never admit their dependency and love of tyranny if confronted. They would deny it. They have adultery, robbery, blasphemy, and murder in their hearts; they want an authoritative law to confirm them in their lifestyle. They will support an all-out statist tyranny and dictator if they can have this confirmation. They will trade their freedom for it, for liberty can only be had when a people is faithful to God. The dictators do their job: they regulate people’s lives from cradle to grave. The more this carries on, the more ignorant, confused, dependent, and sheepish the people grow.
This is a social expression of a spiritual problem: once again, autonomy asserted over theonomy. Many Christians make a grave error in this regard. They hear of God’s Law and think in terms of the old “faith versus works” debate. But this is not about regeneration and justification; it is about Christian life and society. People still mistakenly think of the emphasis on God’s Law as a form of legalism, but this is not what legalism is. Legalism is the imposition of manmade laws in place of God’s law. On the contrary, God’s Law is good when we use the Law according the Law: “Now we know that the law is good, if one uses it lawfully” (1 Tim. 1:8). The sin of the Pharisees was not in exalting the Law, but in adding their own series of fences and regulations to it.
Understanding this distinction not only refutes many modern Christians who reject God’s Law as the standard for state law, but it convicts them sternly also. These same people who will fight and ridicule against biblical law, and even wrongly demean it as legalism, will turn right around and advocate politically for all kinds of unbiblical laws they think will make society better. Thus most conservative Christians support unbiblical wars including the war on drugs, social security, government education, laws against prostitution, laws against alcohol and tobacco, sin taxes, many social services including many cases of child-stealing—the list is legion. Even though some of the things such laws oppose are damnable sins, biblical law does not describe them as civil crimes, and thus God did not decree any laws or sanctions for them. Why do we think we can create a society better than God’s? We cannot, and our attempts to do so are the real Pharisaism that is helping to destroy our society.
Christians who desire to pass such unbiblical laws often defend them as a bulwark against anarchy and lawlessness in society. But here they miss the theological point as well. They too often think of antinomianism as the opposite of legalism, but in reality, they are two sides of the same coin of human autonomy. Legalism is the attempt to replace God’s Law with human laws. Likewise, antinomianism is the attempt to ignore God’s Law as well; but the assumed attempt to replace it with no law is merely just the attempt to assert the individual’s human will against God. Therefore the rule stands: there are no alternatives except for theonomy and autonomy. Autonomy just so happens to come in different forms: sometimes legalism and sometimes lawlessness. But since this is the case, Christians who advocate unbiblical laws for social ills should realize that they are not theologically better off than the drug pushers and prostitutes. Both are asserting their own will instead of God’s for social redemption. Consider again that Christ said the prostitutes would enter the kingdom before the Pharisees, etc. It’s just shocking for many politically-active Christians to find themselves so closely aligned with the Pharisees.
As difficult as it is to do in some cases, Christians must restrain themselves to the limits of God’s revealed law and sanctions, as well as God’s standards for family, church, and courts. His Law must be the strict and only standard for state law and political and social action. Those who sit in Moses’ seat may decree legalistic or humanistic standards beyond God’s Law, but as Christ said, we must not do as they do.
3. Embrace Jury Nullification
When the leaders opposed Saul and overturned his judgment against Jonathan, they were exercising the biblical right of jury nullification. This power is still with us today—one of the vestiges of our common law heritage—and we should take it seriously. This practice, once widely accepted among Christian and early American jurists and lawyers, has been largely forgotten until very recently. Thanks to the increasing interest in liberty, civic involvement, and the advance of individual rights, we are seeing a resurgence of this principle.
The principle itself is quite simple: juries have the perfectly legal right to determine both the facts and the law in cases over which they sit in judgment. This concept sounds radical to most modern ears, but it’s absolutely true. In cases where the application of a currently law would actually cause an unjust outcome, or where the applicable law itself is simply a bad law, the jury can remedy the situation—even if the defendant is technically guilty of breaking the law—by refusing to find that defendant guilty, by declaring the person innocent. Juries have this right even if the judge instructs them otherwise in any way.
Several of the founding fathers understood the fundamental importance of jury nullification. A Fox News report on the subject quoted John Adams to this effect: “It is not only [the juror’s] right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.” Likewise, the first Chief Justice of the U.S. Supreme Court, John Jay, said that “you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. . . . [B]oth objects are lawfully, within your power of decision.” Jefferson joined these federalists in this view. He explained why we should support jury nullification: “To consider judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.”
This power was preserved as basic to preventing government abuse of power. During the debates surrounding ratification, this power was upheld as the fundamental check against potential abuse under the Constitution. During the debates in Massachusetts, Theophilus Parsons—a supporter of the Constitution and later State Supreme Court Chief Justice—proclaimed that
the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainty will pronounce him, if the supposed law he resisted was an act of usurpation.
The framers recognized the importance of this issue from the hard lessons of previous generations. William Penn, founder of Pennsylvania, was a defendant in a 1670 case in England in which he was tried for unlawful assembly. He had violated the so-called “Conventicle Act” of 1664 which forbade religious assemblies of more than five persons for non-establishment protestants. This act was part of the Elizabethan acts of Unity which aimed to centralize the English Church and suppress all puritans and other Protestants. Penn was one of these. When drawn into court, he pleaded not guilty. The jury upheld his innocence—not because he had not broken the law, but because they esteemed the particular law unjust. The bench was furious, and threatened the jurors with imprisonment and deprivation. It finally settled upon fining each member and imprisoning them until it was paid. A higher court, however, later released them. The episode was very famous; it was fundamental to our framer’s understanding of how courts would become tyrannical and uncontrollable unless we preserve the right of jury nullification.
Unfortunately, today it is a practice of most judges to remain silent about this aspect of the law and instead specifically mislead juries only to consider the facts in the case and not the law. An 1895 Supreme Court decision even ruled that this practice is constitutional—judges are not required to explain to juries their right of jury nullification. But this by no means makes the right itself any less important. (It just means that judges are elitist, not wanting average people to have a say in the righteousness of any given law, that they are pressured by large beneficiaries, or that they for some other reason lean toward the side of the prosecution in all cases. Whatever the cause, it’s unethical and counterproductive to liberty in most cases.) Despite the judges’ shifty silence, the Supreme Court itself has upheld the right more than once in American history:
In 1952, for example, the Court found that “juries are not bound by what seems inescapable logic to judges.” And in 1972, that “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge.”
The application of the right has a deep and meaningful American heritage as well. Juries exercised it against the Alien and Sedition Acts of John Adams and against the Fugitive Slave laws in the 1850s. It was used against growing corporate power during the height of the progressive era, used frequently against alcohol control laws during Prohibition, and even in a few cases for Vietnam War protestors.
Not only is jury nullification fully biblical, but it is one right which brings the powers of justice down right to level of the average person. The Fox News report adds,
A common question I get from people disturbed by these kinds of cases is, “What can we do?” Well, here’s one thing the average citizen can do: Serve when you’re called to jury duty, and while there, refuse to enforce unjust laws. If a defendant is guilty of harming someone else, certainly, throw the book at him. But if he’s guilty of violating a bad law, or if you feel the law has been unjustly applied to him, by all means, come back with “not guilty,” no matter what the judge, the prosecutor, or the evidence says.
For those wishing to have as immediate an impact as possible in this regard, they should embrace jury duty when called, and actively work to spread knowledge of this right among their families, communities, churches, and in public wherever possible. Likewise, interested parties should read and learn as much as possible about the subject. Two organizations have products devoted to this issue—the Fully Informed Jury Association (fija.org) is one. They provide resources for education, including a DVD lecture series for churches. The other is Michael Peroutka’s Institute on the Constitution. They produce a course called “The Duty of the Jury,” and I recommend it.
All of these applications go together, because they all stem from the manifestation of the fight between theonomy and autonomy in the public square. We must be faithful to God and not compromise freedom through the bonds of humanistic law. As we have noted, this has ramifications for jurisprudence, our judiciary and legal systems, public morality, respect for law, juries, and liberty and freedom in general. It is long past time for Christians to learn these lessons and gain the courage to apply them like Jonathan and like the leaders who resisted and overruled Saul. It is long past time that modern Christians began seeking freedom through God’s Law once again, rather than compounding the problem through ignorance and Pharisaism.
 The Institutes of Biblical Law (The Craig Press, 1973), 4.
 Christian Theistic Ethics, Volume III of the series In Defense of the Biblical Christianity (den Dulk Christian Foundation, 1974), 134.
 Christian Theistic Ethics, 135.
 www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html (accessed June 12, 2013).
 Bren t Allan Winters, Excellence of the Common Law: Compared and Contrasted with Civil Law In Light of History, Nature, and Scripture (Brent Allan Winters, 2006), 21.
 Winters, 45, 47.
 Quoted in anon., “Justice Often Served By Jury Nullification,” August 1, 2005, FoxNews.com; http://www.foxnews.com/story/0,2933,163877,00.html (accessed November 24, 2011).
 Georgia v. Brailford, 3 U.S. 1 (1794); http://openjurist.org/3/us/1 (accessed November 25, 2011).
 Quoted in Paul, 32.
 In Jonathan Elliot, ed., The Debates in the Several State Conventions, on the Adoption of the Federal Constitution, 4 vols. (Washington, 1836), 2:94. Partially quoted also in Thomas Woods, Jr., Rollback: Repealing Big Government Before the Coming Fiscal Collapse (Washington, D.C.: Regnery, 2011), 179.
 See the whole court transcript, “The Trial of William Penn and William Mead, at the Old Bailey, for a Tumultuous Assembly: 22 Charles II. A. D. 1670,” at http://www.constitution.org/trials/penn/penn-mead.htm (accessed November 24, 2011).
 Anon., “Justice Often Served By Jury Nullification,” August 1, 2005, FoxNews.com; http://www.foxnews.com/story/0,2933,163877,00.html (accessed November 24, 2011).
 See “A History of Jury Nullification,” by the International Society for Individual Liberties; http://www.isil.org/resources/lit/history-jury-null.html (accessed November 25, 2011).
 http://www.theamericanview.com/the-jury-course/ (accessed June 14, 2013).