8.1 Courts in a Free Society
As with the case of taxation, there is no specially-revealed biblical form of government or courts. The standard biblical passages dealing with these issues (Ex. 18; Rom. 13; for example) describe aspects of providence and common grace. Unlike civil taxation, however, God certainly does establish and ordain civil rulers in general—and does so for the specific function of punishing crime (Gen 9:5–6; Rom. 13:1–4). But He does not give us a prescription for the form of that rule. These details are left to His providence.
The lack of a detailed prescription for courts does not mean, however, that just any form of government or jurisprudence can be considered godly in the sense of the ideal of liberty. In many cases—in most cases—the providentially-ordained system is a tyranny and is thus an indicator of God’s judgment on that land. God’s providence is not willy-nilly: He acts according to His law and sanctions in society. Thus a society’s government will be a manifestation of that society’s faithfulness to God. This means, ultimately, that freedom and faithfulness to God are inextricably linked. We will return to this idea in a moment.
The Bible tells us, for example, that bigger government is an indication of more pervasive wickedness in society: “When a land transgresses, it has many rulers, but with a man of understanding and knowledge, its stability will long continue” (Prove. 28:2). The corollary is, of course, that in a land where knowledge and understanding of God’s will lead to self-government on the part of the people (righteousness), there will be little need for civil government. Thus in a free society we should expect “few rulers.”
Biblical Principles of Government Structure
While not specially revealing the ideal system of government, God does give us theological principles which guide the decision over form and method of selection. Without writing a treatise on Christian government here, we’ll highlight the more important and relevant of these principles: representation, election, qualification, and decentralization. First, representation is primarily a theological principle which has ramifications in all covenantal settings, including civil government. Adam represented all of humanity in the fall; Christ represents all believers in His work of redemption (Rom 5:12–21). They are each covenant heads. Believers are in turn Christ’s representatives in earth. Following the covenant headship of Christ, “we are ambassadors of Christ, as though God were making an appeal through us” (2 Cor. 5:20; cp. Eph. 6:20). The idea that we are in some sense God’s redeemed representatives in this world reaffirms and renews the fact that we are created in God’s image. In a Christian civilization, we expect to see this principle at work in our civil covenant. Civil rulers are to be representative servant-leaders of the people, and thus biblical government is representative government.
Biblical government is also elective government. Unless there is some specially revealed leader legitimized by public divine activity (Moses, Samuel, Jesus), the leaders—including civil leaders—are ideally to be elected, not inherited or appointed from above. We see this principle illustrated in the New Testament in regard to church government—specifically the office of deacon:
And the twelve summoned the full number of the disciples and said, “It is not right that we should give up preaching the word of God to serve tables. Therefore, brothers, pick out from among you seven men of good repute, full of the Spirit and of wisdom, whom we will appoint to this duty” (Acts 6:2–3).
These “servers” (deacons), the Apostles instructed, were to be chosen from among the people and by the people. Then, once so elected, the apostles confirmed them in their offices.
These two aspects of election and appointment work together, however, and the basis for appointment is qualification. The apostles did not choose the representatives, the people did. But the apostles would not confirm just anyone—they have to meet certain standards. Thus we see Paul later putting these qualifications in written form to Timothy and Titus—leaders of local congregations responsible for electing and appointing their own elders and deacons (see 1 Tim. 3:1–13; Tit. 1:5–9). Thus, there is a biblical principle that potential leaders must be godly and sound individuals, having already proven their leadership abilities in their homes and among their peers, before even being considered for office.
The final principle here is decentralization. I will highlight this momentarily.
These principles all pertain to official leadership in general—obviously ecclesiastical leadership, for which they are directly prescribed, but there is no reason they should not also apply to civil leadership as well. And thus, there is no reason they should not be the ideal for biblical courts also.
Two primary passages in Scripture address the nature of a biblical judiciary system. One describes a practical, decentralized system of civil courts throughout society; the other prescribes private courts as the ideal for Christians. The classic model for a biblical system of civil courts comes in Jethro’s advice to Moses (Ex. 18:13–26). While Moses was the sole civil judge for the three million or so people, the court system was clogged and everyone suffered, including Moses. Jethro advised delegation of judiciary powers on a greatly decentralized model:
Moreover, look for able men from all the people, men who fear God, who are trustworthy and hate a bribe, and place such men over the people as chiefs of thousands, of hundreds, of fifties, and of tens. And let them judge the people at all times. Every great matter they shall bring to you, but any small matter they shall decide themselves. So it will be easier for you, and they will bear the burden with you (Ex. 18:21–22).
All of the elements from above are either apparent here, or can safely be assumed to have been involved here. Each new judge took over the duties of a smaller constituency, were taken from the people, each had to meet certain qualifications of godliness, honesty, and refused bribes, and the system greatly decentralized the work which was bottlenecked at Moses. Now, most small matters were settled at the very local level, and only great issues made their way to Moses.
It is also likely that these new judges were elected. Although they are said to have been chosen by Moses, this is most likely speaking by proxy—as Moses was the leader of the whole people and thus gets “credit” so to speak. But think of the task before him. There were 600,000 men in Israel (Ex. 12:47). Just using this number of men alone, a program of chiefs for “thousands, of hundreds, of fifties, and of tens” would require 78,600 appointments. There is no way Moses could have appointed this many judges by himself, especially since he would have had to analyze each one’s character, reputation, and integrity individually. Even if he only chose the top rung and then had each of them choose the lesser authorities, he still would have had to examine 600 men individually. At a rate of even ten examinations a day, this would take two months. It seems more likely to me that there had to have been some kind of election process involved, at least at the lower levels. Chiefs of tens would require 60,000 appointees. It seems more likely that, just as the apostles had the people choose their own servants, so there was probably a mass announcement for small groups to choose a representative judge from among them.
Whatever the mode of selection in this episode was, the point was drastically to decentralize the court system, while leaving in place a system of appeals for more momentous or difficult cases. Again, this is a system based on the advice of Jethro and not specially revealed by God Himself; nevertheless, the principles involved are affirmed elsewhere in Scripture. Thus we can safely affirm that a biblical court system can indeed be a state court system, but should definitely feature elected and representative judges, biblically qualified judges, and a greatly decentralized system of local courts with appeals.
The Christian Ideal: Private Courts
But state courts are neither the only nor even most desirable system given in Scripture. The second significant passage in regard to courts shows us a better way—private courts. And whereas the state court system exemplified by Moses is based on the pragmatic advice of a man along with piecemeal biblical principles, the private court system we shall see is directly revealed as the Christian ideal by the apostle Paul. Thus, this should be accepted and embraced by Christians as the most biblical method of resolving judicial disputes. Paul applies the Christian principle of private courts in 1 Corinthians 6:
When one of you has a grievance against another, does he dare go to law before the unrighteous instead of the saints? Or do you not know that the saints will judge the world? And if the world is to be judged by you, are you incompetent to try trivial cases? Do you not know that we are to judge angels? How much more, then, matters pertaining to this life! So if you have such cases, why do you lay them before those who have no standing in the church? I say this to your shame. Can it be that there is no one among you wise enough to settle a dispute between the brothers, but brother goes to law against brother, and that before unbelievers? To have lawsuits at all with one another is already a defeat for you. Why not rather suffer wrong? Why not rather be defrauded? But you yourselves wrong and defraud—even your own brothers! (1 Cor. 6:1–8).
What this shows is first, all believers are judges. We are called to be judges first and foremost of ourselves. All of Christian life is about making and obeying decisions that are faithful to our Lord—and this requires faithful judgment. Since civil government is instituted only to punish crime, then courts will only need to exist to the extent that people fail in the effort of faithful self-judgment first.
But, it is assumed that since we are still sinners even as Christians, and we live in the midst of a fallen world, that conflicts of judgment will abound both personally and interpersonally. Thus, courts will be necessary to decide such conflicts. Paul’s admonition here is to exalt Christian virtues of forgiveness, love, and self-sacrifice to the fore and thus limit the number of conflicts that 1) go to suit at all, 2) go to suit between believers, and 3) get heard before state courts. All should be held to an absolute minimum.
For cases that do arise, private courts are usually the best alternative. This means church courts, arbitration panels, mediation boards, and industry and professional courts. A society neglecting these outlets and the attitude of self-government will easily be paralyzed by endless litigation, massive bureaucracies, and countless administrative laws.1 Toward this aim, all contracts between Christians should include some form of private dispute settlement clause—Christian arbitration being a common one. These should seek to resolve all possible contract disputes privately, between Christian brethren, and eliminate state courts in all but the most extreme cases.
Private courts may sound like a utopian dream to many people today, simply because—as has been the case with so many of our topics—we have rarely been exposed even to the idea, let alone the practice, in our generations. But the truth is, private courts not only sound good in theory, they have existed widely in western Christian history, and they worked quite well.
Arbitration grew popular after the Civil War in the U. S. Judicial panels handled corporate and labor disputes and were widely accepted, despite the fact that they were completely voluntary and not legally binding up until 1925. It was only when some corporations determined to streamline the process that New York in 1920 enacted a State takeover of arbitration, backing all arbitration suits with the force of the State.2 Thus did the abuse of a few get answered by the loss of even the option of purely private courts. The U. S. government followed five years later by nationalizing the same principle. This has been revised several times since to give us the modern Federal Arbitration Act which overrides all arbitration cases and state laws pertaining to arbitration. But keep in mind, this was not the case before 1925, and it only came about largely due to the political clout of large corporations in whose favor a government takeover of the process fell.
The idea of private industry or private merchant courts has deep historical roots in the Middle Ages, and their system illustrates why state enforcement is often unnecessary. From the middle ages until the 1920s, merchants relied on private courts, and if necessary boycott and ostracism. Author William Wooldridge explains,
Merchants made their courts work simply by agreeing to abide by the results. The merchant who broke the understanding would not be sent to jail, to be sure, but neither would he long continue to be a merchant, for the compliance exacted by his fellows, and their power over his goods, proved if anything more effective than physical coercion. Take John of Homing, who made his living marketing wholesale quantities of fish. When John sold a lot of herring on the representation that it conformed to a three-barrel sample, but which, his fellow merchants found, was actually mixed with “sticklebacks and putrid herring,” he made good the deficiency on pain of economic ostracism.3
In other words, this was an honor system on steroids: break the code of honor, and you lost your livelihood. Once it was made known that a business ignored the decision of an arbitration panel, no one would wish to do further business with it.
And while it may be natural to think things were just so different in the Middle Ages than today, it was not so long ago that an industrialist like Owen D. Young, president and chairman of GE, spent a good portion of his time advocating for private arbitration. He advised the U. S. Chamber of Commerce and wrote several essays on the subject. He advised the Chamber “to support and develop the moral sanction upon which arbitration outside the law must depend.”4 Indeed, where the law is not in force, moral sanction is the necessary and very effective key. Young “concluded that the moral censure of other businessmen was a far more effective sanction than legal enforcement.”5 This was 1915. Today, with internet, various databases, and other powerful communications, nationwide ostracism would be even more powerful. It could be public, worldwide, within seconds of an arbitration panel’s decision.6
So we have seen then that a biblical view of the judiciary involves several principles, the most challenging ones being that judicial decisions be radically decentralized and privatized as far as possible. We have also discussed a couple of examples of how the United State was once a bit closer to these principles. These are just a small taste of vast literature on both the theory and practice of private courts, arbitration, etc. We do know that our society at least does have decent options in many cases, especially in private contracts and church courts. We also know that we once had options in this regard to an even greater degree than today. In the next section, we will discuss how our judicial systems have been hijacked and abused from very early on, and how this has manifested in the vast judicial tyranny we have today.
Next section: Judicial Tyranny in America
- Gary North, Moses and Pharaoh: Dominion Religion Versus Power Religion (Tyler, TX: Institute for Christian Economics, 1985), 284.(↩)
- Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto (New York: Collier Books, 1978), 223–4.(↩)
- Quoted in Rothbard, 224.(↩)
- Quoted in Josephine Young Case and Everett Needham Case, Owen D. Young and American Enterprise: a biography (Boston, MA: David R. Godine, Publisher, Inc., 1982), 245.(↩)
- Rothbard, 224.(↩)
- See Rothbard, 224.(↩)