8.3 Creating a Free Judiciary
What can be done to return society to a biblical, free judicial system? In this section we will cover two main avenues to recovering a free society: the establishment of voluntary and private courts, and jury nullification. We will also discuss the commitment to Christian virtue necessary to make it work.
Private Christian Courts
In light of what has been said so far in reference to biblical courts, the most important thing we can do today is to attempt at all costs, as far as possible, as often as possible, to settle inter-personal disputes privately. What does this look like in practice?
For Christians, private settlement means first, forgiveness whenever possible. Secondarily, it means private Christian courts. This was Paul’s main argument to the Corinthians, as we reviewed before. Christians need to recover this doctrine and put it into action. In general, Christians should:
1) Appeal only to Christian “courts”
2) Allow only Christian judges or arbitrators to resolve disputes between Christians
3) Allow only biblical law as the standard of judgment in such cases
4) Provide only such remedies or restitution as biblical law allows
5) Provide some measure for finality of the decision
Let’s consider each of these five aspects. The first point is an application of the idea of sovereignty. Christians have one ultimate King and Judge, the Triune God. It is He who presides, ultimately, over all of life. Only courts that honor Him ultimately have validity. The universe is His courtroom, and no one has removed the Ten Commandments from this courtroom, nor will they. The point is intimately tied with the other four, but especially with point three—that of law. Law in every society is ultimately religious in origin, and the source of law in any given society is that society’s God.1 Christians, as members of God’s holy society, the temple of God on earth (1 Pet. 2:5–10), must recognize the ultimate validity only of God’s law, and thus God-honoring courts. Courts judging according to some other legal standard are courts of some other god as well—no matter how much any constituent part or party of any case may say “so help me God.” This has major implications. Christians must generally consider modern state courts to be mostly ungodly. However they may have been originally founded, they have long since abandoned, as we have seen, any formal recognition of Christian law and have instead embraced Holmes’ humanistic standard of evolutionary, relativistic law. Granted, some traces of Christian judicial heritage may remain, but traces only indicate past history, they do not legitimize the courts as still acceptably “Christian” today. We will address secular courts more in a moment. For now it is expedient just to acknowledge their apostasy and avoid them as much as possible.
Paul’s admonishment to the Corinthians here seems to have had some precedent in Jewish rabbinical law. The Mishnah—an early collection of ancient rabbinical deliberations which forms the basis for the later Talmud—contains a strikingly similar opinion: “A bill of divorce given under compulsion is valid if ordered by an Israelitish court, but if by a gentile court it is invalid.”2 The Jewish legal scholar George Horowitz refers to the phrase, “tribunals of idolators.” He quotes the Talmud, which is commentary upon the earlier statement of the Mishnah:
If it is impossible to adjust amicably, and the parties must go to law, they should resort to a bet-din [“house of judgment”] of Israel. It is forbidden to litigate before judges or tribunals of idolators even when their law is similar to Jewish law, and even when both parties agreed to submit their case before them and, even if they bound themselves thereto by kinyan [a binding agreement] or by instrument in writing. Such agreements are null and void.3
In other words, these Jews considered non-Jewish courts to be courts of idolatry: since they did not submit to biblical law, they must have submitted to a false god. It is important to see that Paul was applying a very similar mindset when instructing Christians in 1 Corinthians 6. As Christians, we dare not run to pagan courts—that would be idolatry—but rather should despise them as inferior to Christian law and Christian courts.
God’s law, God’s court must be made preeminent by Christians, who then must expand godliness outwardly into the state courts where it is lacking. Rushdoony explains,
When a state or its laws are godly, its courts are legitimate and can be used. The state then, despite its sins and shortcomings, is an aspect of the Kingdom of God. Present civil law is in process of becoming radically humanistic, but its framework is still to a large degree Biblical. It is the duty of Christians, not to withdraw from civil law (i.e., the law of the state), but to make it Biblical.4
Closely related to the issue of sovereignty is the second aspect, representation of authority. Every court has representatives of its sovereignty—earthly incarnations of its authority—its judges. God’s court is no different—in fact, it is the original. Ideally, all civil judges’ oaths of office would include swearing allegiance to Jesus Christ and His Word—they would be His representatives—but this simply is not the case today. In a decentralized world, of course, we would have a much better chance of having at least local judges willing and ready to take such an oath, but we are not there yet. In the mean time, every judge represents the law of his court, and thus the source of that law. An idolatrous court is an idolatrous jurisdiction and should not be accepted as ultimate for the Christian. Rushdoony again explains,
A judge or court whose premise is other than the law of God is an untrustworthy administrator of justice. Justice is not impossible with such a man, but it is not to be expected.5
The moment a judge begins representing a law other than the law of God, that judge is representing a false law, and his court has assumed the position of a false god.
[I]f church or state, or any other agency, function as the creator of law, i.e., issuing laws without a transcendental basis, then they have made themselves into gods. Their right to command is then gone.6
In light of this, Christians should seek only Christians as arbiters of their disputes. Indeed, they should preferably seek Christians who have an understanding of Whom they represent as judges and the Word according to which they are to judge. We want to submit only to judges who in turn submit to God and His Word. This is not to say, of course, that all Christian elders, arbitrators, and “judges” of all kinds, as opposed to all pagan judges, will always be perfectly just in their sentences. But justice, honestly, and impartiality are to be expected from godly leaders, whereas such are unexpected of a judge who refuses to submit to the rule and law of God Almighty—who has compromised the deity to begin with. Christians should therefore seek out willing and able Christians to arbitrate and settle disputes among them.
The Standard of Christ
We have already said enough about the third aspect—law. It takes center stage throughout the process and infuses each of the other aspects. The standard throughout is God and His sovereignty, God and His Word. Every court must submit to God’s Law, else the Christian cannot accept it as ultimately authoritative. This raises questions which I will address in a minute. More importantly, every Christian and every church must accept God’s law as the standard of every area of life, of structuring family life and business life, and of “judging the world” (1 Cor. 6:2–3). Unless the individuals and their respective leaders within the church accept the godly standard, we can hardly expect it to ever to be adopted as a source of conflict resolution by civil courts; and more importantly, we can hardly expect the blessing of the Final Judge who gave us that Law to begin with. Without embracing God’s Law, Christians today are—despite whatever growing numbers and massive churches we may display—absolutely lawless in the eyes of our God.
The fourth aspect, sanctions, is tied to the Law as well. Christian courts must seek remedies and resolutions to problems that are applications of God’s sanctions revealed in His law, and no further. For example, the Bible provides clear guidelines for restitution of property in several types of cases: different degrees of theft, embezzlement, negligence, workers’ responsibilities, and more (Ex. 22:1–17). Christian “judges” should study these cases carefully to determine the biblical guidelines that apply, and then declare accordingly. Decisions that go beyond these boundaries—even if determined by secular “authoritative” courts, should not be accepted by the Christian.
Biblical sanctions will provide godly justice, and at the same time prevent frivolous cases, malicious cases, and cases of greed, envy, or human whim. Consider, for example, the famous “hot coffee lawsuit” from a biblical-law view. In this case, a woman sued McDonald’s after she spilled her coffee and suffered third-degree burns on 6% of her body. Since the restaurant served its coffee far beyond the temperature of any other (near boiling-point in fact!), the liability issue was strongly against the restaurant. Meanwhile, the woman originally asked only for her medical expenses to be covered—about $20,000. But the case escalated, and the jury eventually awarded her $200,000 in compensation, plus a whopping $2.7 million in punitive damages. Now, biblical law does call for both restitution and at least 100% punitive damages, awarded to a victim of theft (Ex. 22:4), of which this was a sort. It even calls for four- or five-fold restitution in cases involving valuable property which produces returns or has required costly investment. But not even the most extreme cases of allows a ten-fold restitution plus a 135-fold punitive award. And ironically, this determination was not driven by greed, but by the jury’s whim, based on the defense attorney’s statement that McDonald’s should be punished one or two days’ coffee revenues. Indeed, this was not a frivolous case—as many have supposed—but a frivolous application of sanctions to the remedy. The judge did succeed in lowering the penalties, and further appeals by the defense actually ended the woman up with less than she could have settled for in the original case. That much was due to greed, not doubt. But the jury’s decision was unbiblical, and thus unjust in itself. Christian courts and tribunals which are allowed only to adjudicate according to biblical law would avoid such ridiculous decisions.
Finality and Endurance of Decisions
Finally, we have perhaps the most difficult aspect of private Christian courts—indeed, of all systems of private arbitration, etc.—finality. Every court decision is likely going to be uncomfortable to one party. This means that there will always be an incentive to appeal to a higher court or greater power. Indeed, unless there is a final “buck stops here” voice of judicial authority, appeals in a free market of private courts would be endless. Even the completely anti-State anarchist Murray Rothbard, in his very helpful system of libertarian thought, conceded that there must be some accepted final arbiter: “Obviously, in any society legal proceedings cannot continue indefinitely; there must be some cutoff point.”7 While he criticizes the idea of a state Supreme Court as an “arbitrary” cutoff point, he nevertheless recognizes the necessity of a legally-mandated limit to appeals among private courts:
In the Libertarian society, there would also have to be an agreed-upon cutoff point, and since there are only two parties to any crime or dispute—the plaintiff and the defendant—it seems more sensible for the legal code to declare that a decision arrived at by any two courts shall be binding.8
Obviously, even this standard cannot be upheld without some ultimate point of coercion. What if, despite the legal code, the defendant still refuses to submit to the judgment, or yet another court agrees to hear the case even if the other party remains in abstentia? In such cases, it would be up to society at large to enforce the prior decisions, and this may or may not be very easy. There still remains the possibility that a decision has no practical finality. And who will determine whether the prior two courts’ concurring decisions were arrived at justly? Wouldn’t that require yet another third-party examination of law, facts, and procedure? Thus we introduce yet another type of appeal—but will this appeal also not be subject to dispute. It seems that there must be some “arbitrary” aspect to arrive at finality and continuity of decision in any humanly-enforced judicial system.
In either Christian courts, or Rothbard’s “Libertarian society”—we could simply say a “free society”—the key factor that will give continuity to legitimate court decisions is public virtue based in personal devotion to God’s law. Rothbard is correct to say that “there will have to be a legal code,” it must be “generally accepted,” and the standard of limited appeals must arise from that legal code.9 But if a legal code does not derive from a truly authoritative source, then even a “generally accepted” legal code can only arrive at something like finality pragmatically, not in principle. True binding authority over man can only derive from a Source higher than man, meaning a Law higher than man’s. This law must be God’s law, and this standard must be upheld by courts, especially private Christian courts.
Rothbard is absolutely correct on the practical side: people and the courts must generally agree on the authority of that particular legal code and the courts’ adherence to it. Without people who agree ahead of time to place limits on their appeals for more litigation—which in a free society are really attempts at self-justification against the prior decisions of multiple of your closest and often self-chosen peers—then the very principles of justice are undermined in our hearts to begin with, and such a society cannot expect to be free. The absence of such virtue is the main ingredient which keeps tyrannical states in operation. As long as people are unable to agree voluntarily to limit appeals to self-justification, and as long as enough of the rest of society refuses to impute continuity to the legitimacy of those limits, then some form of coercive state solution will arise and persist to enforce the arbitrary limits determined by the interested and ruling parties. Of course, this is true in many areas of civil life, not just the legitimacy of court decisions.
The Necessity of Civic Virtue
The issue of civic virtue touches the heart of the spiritual and psychological nature of society, and this is clearly true in reference to the judiciary in any society. Criminal and civil cases multiply only where people cannot or will not govern themselves—a point made many times already—but also where people desire to exact as much revenge or remuneration as possible for acts against them. Paul makes this point in reference to the Corinthians. Some of them were bringing frivolous or even fraudulent cases against their brethren, just to profit at their expense. Thus Paul condemned them: “you yourselves wrong and defraud—even your own brothers!” (1 Cor. 6:8). Rushdoony comments that “just as they give more worth to pagan courts than they deserve so they give more worth to their own contentions than they deserve.”10 This is basic to fallen human nature—the source of all fraud in human society. The point, however, discovers the vital link between human vice and the persistence of pagan courts: deviant hearts wish to avoid godly courts: instead they seek out ungodly avenues of authority by which to profit from their vices.
Further, such fraud can exist in degrees: a case need not be completely illegitimate to be considered fraudulent. It may rather be a legitimate injury magnified beyond its true warrant. In fact, this is probably a more likely scenario, for it allows vice and plunder to proceed under at least some cover of law. This, again is a product of the fallen human heart. It is sometimes by conscious design—aimed at enriching oneself, or destroying another purposefully. It is sometimes unconscious. Either way, one should take the advice offered in the essay “On Private Revenge, III,” written by a young John Adams:
Let me conclude, by advising all men to look into their own hearts, which they will find to be deceitful above all things and desperately wicked [Jer. 17:9]. Let them consider how extremely addicted they are to magnify and exaggerate the injuries that are offered to themselves, and to diminish and extenuate the wrongs that they offer to others. They ought, therefore, to be too modest and diffident of their own judgment, when their own passions and prejudices and interests are concerned, to desire to judge for themselves in their own causes, and to take their own satisfactions for wrongs and injuries of any kind.11
Paul’s remedy for these situations is spiritual: it is self-sacrifice. He writes, “To have lawsuits at all with one another is already a defeat for you. Why not rather suffer wrong? Why not rather be defrauded?” (1 Cor. 6:7). This will eliminate purposely fraudulent cases between brethren, it would eliminate frivolous cases, and it would go a long way toward eliminating most cases. Those only that would survive—and should survive—are those in which the issue under dispute would significantly weaken the well-being of the victim. But the path to this state of affairs is one of self-government—controlling the passions, jealousies, and other emotional vices which drive us to magnify our “injuries” beyond warrant. Indeed, the true Christian spirit will go further than self-government. I will progress to self-sacrifice—reining in even the desire to justify one’s injuries in many or most cases.
There was a time when our legal scholars acknowledged this fundamental basic of common law. Again, Adams writes,
The divine Author of our religion has taught us that trivial provocations are to be overlooked. . . . [L]ittle injuries and insults ought to be borne patiently for the present, rather than run the risk of violent consequences by retaliation.
Now, the common law seems to me to be founded on the same great principle of philosophy and religion.12
A necessary step, then, in recovering a free judiciary system is for people to adopt this Christian mindset. We must increase individual, personal government—beginning at the spiritual level—before we can expect society in general to reflect a less litigious, coercive spirit which leverages government courts and force as a means of self-justification. The basic summary is this: “If men will not obey God, they will not obey men.” And when disobedience is the common standard, “they will then require the gallows and the gun as the necessary instruments of order.”13 Unless we learn more often to crucify that flesh, we will not progress beyond such institutionalized force, and despair of seeing a free society.
But in crucifying that flesh, there must be practical manifestations and applications of it. The spiritual must manifest in the material—as we pray His will be done “on earth as it is in heaven.” Christian arbitration or Christian private courts—or a free society in general—would further address the problem of continuity by encouraging relevant clauses in contractual agreements. If parties engaging in business had clear arbitration clauses in their contracts up front, then any arbitration decision which followed itself can become a legally enforceable instrument under contract law. If the contract specifies that should any conflicts arise, these parties agree to settle by means of arbitration, and that the decision of the arbitration panel will be accepted by both parties as final, then that aspect of the contract becomes a legally-enforceable decision under contract law in civil courts. This would make any recourse to state courts at least predictable if not pointless. Of course, such a situation would be extreme; Christians should be content to accept the contractual means to which they had agreed without asking a state court to enforce it or override it with some further coercive legal decision. The point being made here, however, is about finality. Christians solve the endless appeals problem simply by contractually agreeing to stop at the decision of a pre-determined panel of arbitrators or elders.
So here are five principles of Christian courts which individuals and churches need to learn and implement. Considering that Christians (of some confession or other) make up about seventy-five percent of the U. S. population, if every dispute between Christian and Christian were settled this way, privately, it would have several great effects in society. It would make a huge impact on the clogged court system. It would set a powerful precedent of Christian law, virtue, peace, and brotherly love for the rest of society to see. It could also have an educational effect upon a greater number of Christians in at least two ways: 1) it would require us to seek answers to more of life’s practical considerations from God’s word, and thus would force us back to the texts of Scripture more frequently than currently normal for most Christians, and 2) it would teach them in general to learn and rely on the Christian doctrine of self-government. Just apprehending these two lessons would go a long way toward improving society and increasing freedom.
Christians Under Pagan Judicial Tyranny
Earlier we mentioned the problem of secular courts which judge according to a law other than God’s law, and thus set themselves up as rival gods. We noted with Rushdoony how justice is not impossible with such a court, but it should not be expected. In the American system which still has vestiges of its Christian legal heritage, we might expect proper justice more often than in some other societies, but the possibility still arises—and in fact arises more increasingly as society departs from biblical truth—that the rival gods will uphold and enforce satanic laws and sanctions. It may be that courts call for Christians to engage in acts that are sinful. It may even be that courts threaten punishments upon such Christian in these cases, or that courts provide remedies to others who wish to coerce Christians in these regards. What should the Christian do in these cases?
There is a progression of resistance for Christians to follow. First, we must resist peacefully using the instruments of the law such as protest and legal appeals. Second, where the issues are merely local or state issues, we can leave the jurisdiction and move to another which better reflects our values. This option is, of course, greatly magnified under this project’s proposal of “county rights,” where the highest civil authority enforcement for such matters exists only at the local level. In the absence of such a decentralized ideal, it may be best in some cases to leave a State, or even leave the country. When protest and activism are ineffective, and emigration is not practical or preferable, then the Christian must make a judgment as to the severity of the offense to determine whether civil order or Christian conscience should have priority. It may be case that “while the powers have no right to command apart from God’s word, sometimes the duty to obey remains as the moral course, and the pragmatic course,” and thus we must obey unto God for the sake of order, not for the sake of the particular human decision. Where a particular law is egregious enough, however—for example, in reference to abortion or sexual deviancy—Christians absolutely must engage in civil disobedience. But this must be done in “conscious obedience to God rather than man,” and preferably in concert with public proclamation by some recognized Christian authority.14
Civil disobedience in egregious cases—necessary cases—is a long accepted and ancient Christian right and practice which modern Christians need to recover. This is especially true in the United States where retain many vestiges of a formerly Christian society: the delusion created by these vestiges means that we tolerate the rotten guts of socialism and humanism in virtually every corner of government and society merely because there remains a paper veneer of Christian heritage over top of it. The greatest advances, however, of Christianity in society throughout history have come when Christians have confronted the rottenness. Toward this motivation, the words of Francis Schaeffer are worth quoting at length:
Throughout the whole history of the Christian Church (and again I wish people knew their history; in A Christian Manifesto I stress what happened in the Reformation in reference to all this), at a certain point, it is not only the privilege but it is the duty of the Christian to disobey the government. Now that’s what the founding fathers did when they founded this country. That’s what the early Church did. That’s what Peter said. You heard it from the Scripture: “Should we obey man?… rather than God?” That’s what the early Christians did.
Occasionally—no, often—people say to me, “But the early Church didn’t practice civil disobedience.” Didn’t they? You don’t know your history again. When those Christians that we all talk about so much allowed themselves to be thrown into the arena, when they did that, from their view it was a religious thing. They would not worship anything except the living God. But you must recognize from the side of the Roman state, there was nothing religious about it at all—it was purely civil. The Roman Empire had disintegrated until the only unity it had was its worship of Caesar. You could be an atheist; you could worship the Zoroastrian religion…. You could do anything. They didn’t care. It was a civil matter, and when those Christians stood up there and refused to worship Caesar, from the side of the state, they were rebels. They were in civil disobedience and they were thrown to the beasts. They were involved in civil disobedience, as much as your brothers and sisters in the Soviet Union are [in 1982]. When the Soviet Union says that, by law, they cannot tell their children, even in their home, about Jesus Christ, they must disobey and they get sent off to the mental ward or to Siberia. . . .
The early Christians, every one of the reformers (and again, I’ll say in A Christian Manifesto I go through country after country and show that there was not a single place with the possible exception of England, where the Reformation was successful, where there wasn’t civil disobedience and disobedience to the state), the people of the Reformation, the founding fathers of this country, faced and acted in the realization that if there is no place for disobeying the government, that government has been put in the place of the living God. In such a case, the government has been made a false god. If there is no place for disobeying a human government, that government has been made God.15
It is simply time that Christians informed themselves on these matters, exalted the proper God to His throne in both their hearts and their society, and get prepared to make decision and actions accordingly. The early Christians did it, the Reformers did it, and American Christians did it. There is no reason God’s people today should not be equally prepared.
Another avenue in which we can already restore the principles of liberty is through jury nullification. 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.
He 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 unpopular or 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. Even 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.”16 Likewise, the first Chief Justice of the U. S. Supreme Court, John Jay, “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.”17 Unsurprisingly, 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.”18
This power was preserved as basic to preventing government abuse of power. During the ratification debates, 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.19
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.20
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.”21
The application of the right has a deep and meaningful American heritage as well. Juries exercised it against the Alien and Sedition Acts of 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.22
Keeping right with the theme with our project, the Fox News report says,
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 the 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. There is at least one organization devoted to this issue—the Fully Informed Jury Association (fija.org). They provide resources for education, including a DVD lecture series for Churches.
There is yet another avenue by which the people have some control over the judiciary, albeit indirectly. This is Congress’ constitutional power to regulate the Supreme Court’s jurisdiction over any of its legislation. Believe it or not, the Constitution gives Congress this power. Article 3, Section 2 states,
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
In many cases, then, Congress can declare “Exceptions” and “Regulations” upon the jurisdiction of the Court, and indeed it has done so in the past. This power has certain limitations and drawbacks, of course, but is very real, should be taken seriously, and our Senators and Congressman should be well-informed of it. We will discuss all of these aspects in a supplementary lesson.
So there you go. The average person concerned about judicial tyranny has practical things to do even in this seemingly incontestable area. We can promote private courts or private arbitration, when applicable settle our own disputes there, and pledge to remain content with the results. This is especially true for Christians who should have had such courts established for themselves long since. Further, Christians should do as much as they can individually to limit litigation in society—this often means self-sacrifice for minor infractions, debts, etc. Finally, jury nullification is powerful tool to halt tyranny in individual cases—and if enough cases strike down the same law, it will set a precedent for changing that law. Interested Christians should research, learn, and then inform their elders of all of these principles and practices. Granted, these steps will not transform the entire judiciary system overnight. But then again, as we have stressed from the beginning, we are planning and working for our children and grandchildren.
Next section: Preventing the Warfare State (Defense, Part 1)
- See R. J. Rushdoony, The Institutes of Biblical Law (The Craig Press, 1973), 4ff.(↩)
- Herbert Danby, The Mishnah (New York: Oxford University Press, 1933), 320. See Gittin 9.8.(↩)
- Quoted in George Horowitz, The Spirit of Jewish Law ((New York: Central Book Company, 1963), 650.(↩)
- R. J. Rushdoony, Law and Society: Volume 2 of the Institutes of Biblical Law (Vallecito, CA: Ross House Books, 1982), 344.(↩)
- R. J. Rushdoony, Law and Society: Volume 2 of the Institutes of Biblical Law, 345.(↩)
- R. J. Rushdoony, The Institutes of Biblical Law (The Craig Press, 1973), 620.(↩)
- Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto (New York: Collier Books, 1978), 227.(↩)
- Murray N. Rothbard, For a New Liberty: The Libertarian Manifesto, 227.(↩)
- Rothbard, For a New Liberty, 227.(↩)
- R. J. Rushdoony, Law and Society: Volume 2 of the Institutes of Biblical Law, 345.(↩)
- John Adams, in The Revolutionary Writings of John Adams, ed. C. Bradley Thompson (Indianapolis, IN: Liberty Fund, 2000), 17.(↩)
- John Adams, in The Revolutionary Writings of John Adams, 12–13.(↩)
- See Rushdoony, The Institutes of Biblical Law, 620.(↩)
- For these four “routes” of resistance, see Rushdoony, Institutes of Biblical Law, 620. The direct quotations here are from the same reference.(↩)
- Francis Schaeffer, “A Christian Manifesto,” from a lecture given at Coral Ridge Presbyterian Church in 1982; http://www.peopleforlife.org/francis.html (accessed November 25, 2011).(↩)
- 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 (access November 25, 2011).(↩)