“…every ordinance of man…”
1 Pet. 2:13
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Subsections
How Far Positive Human Laws Bind the Conscience
Ordinances, Order & Policy of the Church
Mere Will or Judgment of Authorities: Insufficient Ground of Faith & Obedience
Jurisprudence
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Order of Contents
Intro
Articles 6+
Books: Law of Nations 6
History: International Law 1
Quotes 4+
Law Maxims 4
Bad in itself vs. Prohibited Bad 1
Latin 16+
Difference Between Natural & Positive Laws 3
Relation of Natural to Positive Laws 3
All Human Laws are Positive 1
Civil & Church Governments are Positive Law, not Family 5
Natural Law Over-Rules Positive Law 6+
Certain Divine Positive Laws Overrule Natural Laws 3
Disobedience to Positive, Human Laws 4
How to Go About Disobedience to Superiors 1
Positive Laws of God 8+
. God’s Decrees are Positive 1
. Unique, Positive Laws of God are not Obliging on Us 1
. All Mosaic Judicial Laws are Positive 2
. Permissive, Mosaic Laws of God 6+
. Death Penalty for Murder (Gen. 9) is Positive 4
. Some Aspects of the 10 Commandments are Positive 1
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Introduction
One of the most important distinctions in ethics is between natural law and positive law. To illustrate, consider whether there is any ethical difference between:
(1) Repelling physical violence in self-defense, and
(2) The prohibition not to drive over 60 miles an hour on a given road, when one might safely drive 75 mph on the open road (and reach one’s destination in a more timely manner)?
While both are in some way founded on, and exemplify God’s moral 6th Commandment, ‘Thou shalt not murder’, yet there is quite a difference between the two examples:
– Self-defense in order to preserve life is a natural inclination and law that is universally applicable in all situations, circumstances and cultures; a speed-limit is a human made and set positive-law that is not known by nature and is only applicable in some circumstances and societal contexts.
– Preserving life, and using the necessary steps to that end, morally binds of itself; therefore it is necessary. Specific speed-limits, however, do not inherently bind of themselves, but rather are (or should be) an approximation of the configuration of natural laws applicable in sometimes complex circumstances. Speed-limits are alterable and are capable of being otherwise.
– Disobeying natural law (when no higher reason pertains to do so) is unnatural and therefore sinful; yet if one obeys the natural laws pertaining to driving, speed-limits are unnecessary, they only needing to be enacted and enforced due to lawless persons (1 Tim. 1:9); nor is it always wrong to disobey specific speed-limits (as in the case of emergencies, as is usually recognized by societal law).
If these differences hold, then not all ethical laws entail the same morally obliging force. This simple, foundational distinction in ethics, between natural law and positive law, has wide-ranging and profound implications for the daily life of all people, especially as Christians seek to live rightly before God. Let us seek to be those who, “by reason of use, have their senses exercised to discern both good and evil.” (Heb. 5:13-14)
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To Put it Simply
Natural law inherently binds in and of itself, and therefore, given the natural order of this created world, it cannot be otherwise.
Positive laws bind not of themselves, but by the authority or reason of the lawgiver, and might be otherwise or possibly not at all.
This article will discuss first positive human laws in Part 1 before turning to the positive laws of God in Part 2.
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Part 1
From the Ground Up
As communities of people have formed together, grow, develop and change over time, positive laws are found useful in the ordering of relations between the persons of the society in order that all might live in harmony together and partake of the many benefits which result therefrom. All such enacted, positive laws ought to be based on God’s natural and moral laws, and must be so if those positive laws will be wholesome, just and good.
Hence all good positive laws are going to be partly natural and partly positive. Good positive laws have a basis in the nature of things, in natural relations and inclinations, and are designed towards natural goals. Yet they are partly arbitrary and are at the appointment of the community (or its delegates). Of necessity, due to the inherent limitations of specific laws, they cannot account for every natural circumstance, factor, principle or right. In fact, they often inherently restrict certain other natural tendencies and positive rights of individuals for the greater good of the whole.
Hence positive laws, being built on Nature, are only secondary laws for good order and are not absolute. While there will be variety in the positive laws of various societies, yet, there will also be a certain continuity about them insofar as they are based on the universal laws of Nature.† This significant continuity across the positive laws of diverse societies in all times has been known as The Law of Nations.
† Human corruption, blindness, hard-heartedness and oppression must also be taken into account.
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Cultural Relativism
Post-modern cultural relativism argues from the fact that there is a great variety amongst the laws, practices and morals of various nations and cultures, to their being no universal moral laws that transcend cultures and societies. What is right in one culture may be wrong in another; hence, there is no stable reason for why a given practice is right or wrong.
This view and argument is easily shown to be faulty with a proper understanding of ethics and positive law. It is true that there are many differences, profoundly so, sometimes, between the positive practices, customs, laws and mores of cultures. However, all of those positive practices and laws have some underlying natural foundation and natural reasons for them. These more fundamental notions and inclinations of moral force, though expressed differently in positive instances, are truly trans-cultural amongst all people as these notions and inclinations are characteristically human and from nature. Natural Law is universal in, and the same in, every society, though different aspects of it are often perceived, emphasized and manifested differently amongst different people groups (as should be expected). To say it another way, though different cultures may have materially different and even contrary positive practices and notions, yet the general equity of those positive practices and notions will yet be found to stem from the same body of Natural Law.
Contrary to some modern ‘conservative’ notions that all morality is absolute, the puritans largely taught a balanced position, that there is a right form of cultural relativism at the positive level, as taught not only by Nature and experience, but also as it is instanced in and taught by Scripture. At the same time, the puritans were not shy in pressing all men to the natural law written on their hearts (Rom. 2:14-15) and to the universal, moral law of God revealed in Scripture.
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All Human Laws & Commands are Positive
The extent to which the Natural/Positive Law distinction takes hold is profound. Unless a person is simply verbalizing a general law of nature, all human laws, commands and injunctions are positive laws. This is because all human mandates assume and involve particular circumstances.
To honor one’s superiors (the 5th Commandment) is a due relation of nature and therefore a moral principle. For a superior to enjoin upon an inferior that the inferior honor the superior in a specific way at a given time involves not just those understood particulars, but also a whole past history of circumstances and relations, and even the relevant possible or probable outcomes that lie in the future (which things may be contingent upon the act itself). In order to be able to demand complete moral obligation and obedience in that simple injunction, righteously and infallibly,† one would have to be God.
† Human authorities are to rule by God’s moral law in the external court according to the outward man (which necessarily involves limited knowledge). Such judgments may be right or not; hence, they are not infallible.
To say that all human laws and commands are inherently positive and secondary, is to assert the revolutionary principles that were intertwined with the heart of the Reformation: that God alone is Lord of the conscience, that He alone judges certainly and righteously, and that all obedience is due unto Him first (Jam. 4:12; Rom. 14:4; WCF 20.2).
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Priorities
As some ethical obligations are more foundational and stronger than others (Mt. 23:23), as not all things can be done at once, and as this world is filled with the most varied and unexpected contingencies (Eccl. 9:11), so it must be the case that some moral obligations take precedence over other ones.º
º This is not simply due to the creature’s finite and limited knowledge. One view of ethics holds that moral obligations so qualify themselves that when another duty comes to bind, the former duty leaves off binding; and that the bindingness of such duties (theoretically) finds its perfect (though often unknown to us) resolution in the infinite knowledge of God.
Westminster Larger Catechism says, however, in #99.5, “…what He commands, is always our duty (Deut. 4:8,9); and yet every particular duty is not to be done at all times (Matt. 12:7).” For puritan quotes to this effect, see the relevant section on our page, On the Relations Between the 1st & 2nd Tables of the Law.
This principle is also demonstrated in that where one divine command may directly and primarily determine a given action of our’s, yet another divine command may also necessarily need to be expressed in a secondary way, at the same time in that action. An example is disobeying a human authority’s dictate due to keeping the 6th Commandment, and yet being morally obliged, nonetheless, to honor them in doing so. That is, one is not released from the obligation of the 5th Commandment because one is more directly obeying the 6th Commandment in the circumstances.
This principle, that some moral obligations take precedence over others, is evident in the workings of societies themselves: as natural circumstances significantly change in a society, so natural and moral obligations shift their weight accordingly. As this occurs old positive laws lose their moral force, are excised, and new positive laws are enacted to protect moral laws in the new circumstances.
To put it more forthrightly: Under necessity, pure natural and moral laws override positive laws when they conflict (Mt. 12:1-5, 10-13; 15:3-6; see the subsection below on this page for more). This is necessary insofar as natural laws have a greater binding nature to them, and as when two choices conflict, that which entails the greater good in the circumstances is to be done (lest the greater good be left undone).
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The Real World:
Examples
The medical field provides an apt testing ground to illustrate these principles. The examples will likely readily apply by inference to many situations in your life. Imagine one is working as a nurse in a nursing home:
There are literally more positive regulations than you can jostle in your head. Most of them are instituted by the civil government (on a changing basis). Each of them, binding on the whole civil State regardless of the greatly varying circumstances, seek to uphold some three-times-removed ethical principle. Many of them are inconsistent with each other and entail contradictory actions in the same situation. Many situations do not fit into the text-book, regulatory box, and the regulations often simply retard common-sense and beneficial moral actions from being provided to the elderly residents, to the detriment of the residents’ own desires and well-being. This is especially the case when time is short and the facility is understaffed, as is often chronically the case.
At the same time, one may very well be written up for discipline for omitting any one such regulation, by administrators who have little knowledge of or sympathy with the complex realities of a particular situation as it occurred, they (unnaturally) holding such regulations to be absolutely morally binding in every particular (usually due to an undue reverence and fear of man, rather than the fear of God). What does one do?
While one ought to try one’s best to go out of one’s way to fulfill the regulations of order as much as possible (in order to fulfill what good may be in them, and to prevent scandal), yet when such regulations conflict with more fundamental natural and moral duties of service to persons made in the image of God, one ought to fear the God of Nature first, and do what is fundamentally right and good for the situation, throwing the rest of the positive regulations to the wind as chaff, if need be. Fundamental natural and moral duties, in necessity, override positive duties. The most important things will get done, though lesser things are left undone.
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How Far does the Will of the Boss Oblige?
You have worked in numerous facilities. While they seek the same general ends and have similar processes and rules, yet the details differ. The boss says that it will be done a certain way. You are well aware that it might be done any number of other ways and it will still accomplish the same end. Ungodly coworkers, in their great wisdom, don’t hesitate therefore to complain about it.
Yet the work must be done in some way, and the boss has the authority to lead the team in a good work-flow, at his or her discretion (especially as it fits into all the other work-processes in the facility). Apart from any great necessity, a Christian will defer and give weight unto the desire and directives of the boss. Positive orders are moral insofar as they are necessary to some extent and have some natural reason in them; they oblige to that extent.
If exceptions need to be made in order to uphold what is good, and the good end of the positive order may be fulfilled in another way, then it is not wrong to take the liberty in differing in the details, especially when obeying the exact order would do detriment to the inapplicable circumstances. The old legal maxim is true: The spirit of the law (or the reason for which it was instituted) is of more moral force than the letter of the law.
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Is Breaking Non-Moral, Positive Ordinances Sinful?
When there are so many general, positive regulations that are grounded in no applicable, moral principles in specific circumstances, workers tend to keep them, insofar as they do, simply because of what is expected of them from the will of their superiors. Are the positive dictates of the human will, apart from the moral law of God, morally obligatory?
When you are working alone, and no one else is around, is it wrong to omit such non-moral regulations, especially as they may hinder efficiency in the good of your work? Samuel Rutherford argued at length and in detail regarding a similar ethical situation† that if the action does not bring dishonor upon one’s superiors (5th Commandment), nor does it scandalize others who may (in their ignorance) take moral offence at it (6th Commandment), then it is not sinful to omit needless and non-moral positive ordinances.
† See the section, ‘Rutherford’s Distinctions & Conclusions’ on our page, On How the Laws & Commands of Human Authorities Bind the Conscience, & How they Don’t.
The reason is because no moral law of God is being broken. According to Westminster Shorter Catechism, #14, “Sin is any want [lack] of conformity unto, or transgression of, the law of God”, and not anything more than that. Also, humans are not able to make inherently indifferent things to be actually good (that is, to create goodness). God alone, and He only, is the source of all good (Mt. 19:17). Rutherford said:
“…the efficacy of obligation in human laws, comes not from the will of lawgivers, or their intention, but from the dignity or weightiness of the matter. If then the matter be not from God’s law, just, the obligation is none at all.” (Ibid.)
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Speed-Limits
Speed limits are intended to enforce some moral good: namely not endangering oneself or others through excessive speed on the road. However, what about arbitrary speed limits that are far from rightly reflecting natural law? There are two, polar-opposite answers commonly given to this issue:
(1) One ought always to obey arbitrary speed limits due to the authority of the civil magistrate; or
(2) One need not to regard a speed limit, or the civil magistrate, when it is not grounded in convincing reason.
Both answers are wrong. According to the view of such puritans as Perkins and Rutherford (as well as others), if dishonor does not redound unto the magistrate through one’s action, nor does one scandalize others in it, one may safely disobey such an arbitrary dictate of the magistrate (or any such human authority) without sin before God (though you might be paying a ticket for it later).
One reason for this is that the mere words of a man, or men, or a magistrate not acting according to his office (who is to rule according to God’s natural and moral law) cannot make an indifferent thing that we have liberty for before God to be wrong or sinful (lest men be able to add to the commandments of God, Dt. 4:2, and the simple will of man, without the will of God, be capable of damning persons in Hell more).
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How Far the Simple Desire of an Authority Obliges
Most every positive law of man has some reason for it, as persons, even dictators, are rational creatures. The real question is how far does such a reason (and the positive command) oblige?
A father relaxing in his chair may tell his child to go and get something for him, rather than he getting up and getting it himself. The child has a moral obligation by the 5th Commandment to honor his father. The father has not commanded him to sin; must the child obey or be guilty of sin?
On the one hand, the father may rightly expect, and be training his child to be decent, kind and sacrificial in serving others in their reasonable requests. The father’s personal desire is a legitimate natural reason, to some extent, and the child in the circumstances may be naturally, morally obliged to love his father, defer to him and serve him.
It is also possible, though, that the father is lazy, selfish, demanding and does not treat his children with integrity. The child may also have other ulterior circumstances and reasons for not performing the action which may be of greater moral weight (which the father is obliged to respect) than serving the father’s mere desire. If the child is respectful and preserves his father’s honor (upholding the 5th Commandment), it may be lawful and right for the child not to act as a slave to his father’s mere whims.
To answer the original question: The simple desire of an authority obliges as far as that desire morally obliges. Rutherford said, “…the just weight of the matter is the only just ground of the law’s obligation.” (Ibid.)
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A Political Dictator
Likewise, a political dictator usually has reasons for what he positively commands and enforces as absolute upon others. The stated or assumed reasons may often terminate merely on the dictator’s own personal desire or self-interest. On the one hand, magistrates have a legitimate right to have their personal desires served in some respect, especially insofar as their personal desires ought to be honored, in some respect, due to the 5th Commandment.
However, the personal desire of a magistrate is of far less natural weight than the good of the whole commonwealth. For a magistrate to serve his own personal interests contrary to the good of the commonwealth is but to put the people under him into slavery.
The American Declaration of Independence (1776) argued in a similar fashion against the tyrranical king of England, George III:
“He has refused his assent to laws, the most wholesome and necessary for the public good.
He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
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[He has given his assent] For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments:
For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”
The morally obliging force of the personal desires or opinions of the magistrate (or other authority) can only ever amount to as much as the weight of the natural reason itself, and no more. Rutherford argued:
“…if the law from man’s will shall lay on an obligation of three degrees, whereas God’s Law from God’s Will, before men enacted this in a [positive] law, laid on an obligation of two degrees only, tying the conscience, then the will of man creates obligation, or the obligative power of conscience in the matter of the law; and by that same reason he creates goodness: which is absurd, for that is proper to God only.” (Ibid.)
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Natural & Positive Law Through History
Overlooking ancient history, positive law came into concentrated focus in a very specific context in Europe during the Middle Ages. When one’s outlook goes no further than one’s own society, it is easy to simply equate morality with one’s own societal conception of it. When various medieval nations, however, traded amongst each other, especially on the seas, it necessarily brought the concept of positive law to the fore.
What basis for law was there between two otherwise sovereign nations, especially as it applied to a vacuum domicilium, a vacant abode, such as the sea? In whatever way one would trade with such foreign nations, it would have to be by agreements, or positive laws or contracts that did not previously exist.
A body of literature among jurists, becoming more and more international, began to form around the political ethics of sea-trading. This soon-to-be traditional common-place continued through the time of the Reformation into the late-1500’s, when a notable number of works were written on it by both protestants and Romanists. By this time the political ethics and practices of sea-trading had especially come to earn the special reference of the term, ‘The Law of Nations’.
In the early-1600’s, the Arminian, Hugo Grotius was the first person of the era to greatly systematize, unify and broaden the horizons of international law-theory, and that upon the foundation of universal, Natural Law. He did this in his book, The Rights of War & Peace, Including the Law of Nature & of Nations… (1625). This book was very influential and attracted enthusiastic followers later in the 1600’s who built and modified their own system of ethics of international law off of his work. As late as 1652, John Selden, the celebrated English, Erastian jurist and Westminster divine, wrote the very relevant work to his time, Of the Dominion or Ownership of the Sea…, which defended England’s interests therein.
In the late-1600’s, when professorships on international law were being created in universities (often with the support of the supreme civil magistrate, and his interests), the field on ‘The Law of Nations’ tended to more directly lean away from confessional religion. While natural and positive law is fully consistent with confessional religion, as it had been, yet the field came to be isolated therefrom in focusing itself upon the sole foundation of Natural Law, in exclusion from special revelation. This tendency lent itself to the rising Deism of the day, which ideology positively denied supernatural revelation. This trajectory only came to grow until it fully bloomed in the Enlightenment, which, in its strongest forms, held that reason alone was sufficient for man’s ethical living, relations and government.
As many of the most fully developed theories of ‘The Law of Nations’ were written in the late-1600’s and early-1700’s, so they are somewhat affected by the foresaid proto-Enlightenment tendencies. Nonetheless, the works may be very helpful in more fully considering the issues, when read with discernment; and thus they have been included on this page.
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Part 2
Some of God’s Laws are Positive
The daughter of a prominent Christian apologist was confronted with the question:
“If God was absolutely moral, because morality was absolute, and if the nature of ‘right’ and ‘wrong’ surpassed space, time and existence, and if it was as much a fundamental property of reality as math, then why were some things a sin in the Old Testament, but not a sin in the New Testament?”
Because neither she nor her college roommate could answer this question, she concluded that, “by the very nature of the problem, there was no possible answer that would align with Christianity.” Rachel Slick, the daughter of Matt Slick, the Calvinist founder of Christian Apologetics & Research Ministry, (CARM), sadly shortly fell away from the faith.†
† See her self-written story, ‘The Atheist Daughter of a Notable Christian Apologist Shares Her Story’ (2013).
Ms. Slick, despite the rigorous theological training in her upbringing, did not understand the Christian doctrine of positive law.
Some of God’s commands are positive: they may be materially indifferent, but they are obliging due to God’s authority and the moral reasons that He has for instituting them.ª Though God may not always reveal these reasons to the creature, yet God, and He alone, is to be implicitly trusted and obeyed (precisely because we may safely and certainly trust that He is all good and all wise).
ª God never does anything without a reason; that is, He never does anything purely randomly and for no reason at all, or vainly. That would be irrational. Rather, wisdom is an attribute of God which inheres in all of his acts, and his goodness provides that He works all things unto a good end. “Deus frustra non agit.” – Antonius Walaeus, A Compendium of the Ethics of Artistotle Recalled to the Norm of Christian Truth (Leiden, 1620), ch. 1
The moral reasons that God has for instituting certain positive laws, such as the ceremonial and judicial laws of Moses, may only be applicable for a time, namely in training up his young Church as children in the faith till they reach their maturity in the development of the history of redemption (Gal. 3:19-4:5).
It was sinful for the people of Israel to deviate from those positive laws in that time, as they were bound by God’s authority for the moral reasons He had for them (including the promotion of the people of God’s spiritual health and salvation; the 6th Commandment). When the circumstances, and hence the moral reasons for these positive laws, ceased (in the progress of revelation), so God no longer bound these positive laws by his authority; hence, to deviate from the ceremonial and judicial laws is not “a sin in the New Testament”.
If God could not, upon given circumstances, bind temporary positive laws upon his creatures for moral reasons, then God could not do all good things (which would be a stain upon his omnipotency). It would also hinder his sufficiency to help, bless and guide his finite, mutable people in all of their most varied and contingent circumstances unto eternal life.
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God’s Decrees are Positive
To take the issue even deeper: God’s eternal decrees and acts ad extra (his acts towards that which is outside of Himself: the Creation) are positive:
God’s decrees do not flow necessarily out of his nature. If such were the case, Creation would be eternal and God would be in some way dependent upon the necessity of Creation’s existence. Nor would God be completely sovereign over Creation, and even its existence. Rather, God’s choice to create was a free and sovereign act of God, He being wholly sufficient apart from Creation altogether (this is the doctrine of God’s aseity).
As God necessarily must retain all the power He has ever had, or could have, so it is possible that God had never created.º That being the case, Creation is not inherently necessary, and God might have chosen to decree otherwise, or not at all. Hence, alternative possibilities to Creation exist, and God’s decrees of choosing the course of all time and history are positive.
º This is standard, orthodox, reformed doctrine. See our page, On Possibilities & Hypotheticals.
Likewise, God did not have to effectively allow sin to enter the world, or save anyone from it. Hence, God’s decrees of sin, election and sending Christ for redemption are positive, being enacted for the moral reason of a greater good, namely to more fully and gloriously display the wonders of God’s own attributes (Rom. 9:22-23).
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Eden
Perhaps the most prominent positive law of God in history was his commanding Adam not to eat of a particular tree in Eden, on pain of eternal death.
As Francis Turretin and other puritans teach, there was not an inherent difference between that tree and any of the other trees. Eve was right when she “saw that the tree was good for food, and that it was pleasant to the eyes” (Gen. 3:6). The only difference between that tree and any of the others was that God had arbitrarily, upon his own authority, said not to eat of it. The trial would be to see if God’s free creatures would obey his command simply because He said it, on his authority alone; the trial was to see if they loved Him.
God had a reason: it was, in the term of Turretin, ‘exploratory’, to elicit out of God’s free creature which direction he would take. Hence, the tree was called, ‘The Tree of the Knowledge of Good and Evil’.
It was upon only the smallest possible, arbitrary,‡ restraint of this positive command, on God’s authority alone, apart from any other natural reason, that the eternal salvation or damnation in the Covenant of Works of the whole human race depended. Truly James says, “For whosoever shall keep the whole law, and yet offend in one point, he is guilty of all.” (James 2:10) The sin might be measured by its effects; and if the corruption of the original sin of Adam is passed on to every person of this human race during this age, then how great is it to disobey our Infinite God’s authority in the smallest degree?
‡ Meaning, ‘from the will’, or ‘chosen’. Note that our First Parents were able to eat of all the other luscious fruit-trees of the garden.
Church Government is Positive
Those who hold Church government to be of divine right may feel uneasy in calling it positive. Rutherford, who wrote The Book on the subject, The Divine Right of Church Government (1646), did not.
One reason why Church government is positive is because it is a special arrangement that does not simply inhere in or derive from nature; rather, it has been appointed in special revelation by the will of Christ about redemption. It is also political, in the sense of binding men in society. Church government could be otherwise (if Christ had so appointed); however the specific form of it, namely classical presbyterianism, is the particular form that Christ has chosen and instituted as the Mediatorial King of the Church, his Kingdom. The form of the government binds not from the nature of it (though it is in accord with the light of nature), but from Christ’s authority alone.
Church government was different in the Old Testament, and had changed, developed and progressed numerous times therein. To say that New Testament Church government is positive does not mean that there is not any continuity between it and the Church government of the Old Testament; there is. But there is also not a direct one-to-one correlation between the two either, which some persons find perplexing.
On the one hand, as these positive laws of Church government are binding as they are positive (just as the Mosaic ceremonial laws were binding to the Old Testament Church as they were positive), so under the normal circumstances of the Church in the course of history, every last spiritually prescribed detail (however minute) of Biblical, classical presbyterianism is binding by the authority and honor of Christ, the Church’s Lord.
However, on the other hand, it is also because the laws of Church government are positive, and as moral obligations (in necessity) override positive ones, that alterations in the regular government of the Church, grounded in natural principles, may, and should, legitimately occur in extraordinary and necessary circumstances (as the Bible and historic presbyterianism teach).
Because human, Church government is positive, according to the needs and circumstances of the Church in this age, it will greatly change and fall away with the renovation of all things in the Age to Come, when no teachers will be needed, as we will be beholding God face to face, immediately (Jer. 31:33-34; 1 Cor. 15:28).
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The Ten Commandments
It may be surprising to learn that the Westminster Confession of Faith never explicitly calls the Ten Commandments ‘the Moral Law of God’. Rather, the Confession only says that the Ten Commandments are “commonly called moral” (WCF 19:3).† The reason for this may be that many of the puritans taught that aspects of numerous of the Commands were positive.º
† WCF 19.5, when treating of ‘the moral law’, does footnote Rom. 13:8-10, which speaks of Commandments 6-10.
º For one instance, see Rutherford’s quote in the relevant section below on this page. Many more could be quoted. This is not to take away from the fact, as Turretin teaches, that the substance of the Ten Commandments are founded on the necessary nature of God and the inherent qualities of the created order. Hence, the Ten Commandments, which were given by the Finger of God, due to its substance, may rightly be called, ‘the Moral Law of God’, unlike the Ceremonial and Judicial Laws.
Such positive aspects in the Ten Commandments are clearly seen in the special reference to the land of Israel in the 5th Commandment (Ex. 20:12) and some of the specified details in the 2nd, 4th and 10th Commands. However, the positive aspects of the Ten Commands in their societial relations goes further:
Marriage in the 7th Commandment is only applicable to this life, and not to the Age to Come. Marriage itself, while founded on nature, yet was positively ‘ordained’ (WCF 24:2) by God shortly after the creation of Adam. It is also clear that property rights (entailed by the 8th Commandment) are not absolute.º The 2nd Commandment in its genera essentially encompasses the whole worship of God (WLC 99.6); and yet the Confession rightly says that “the acceptable way of worshipping the true God is instituted by Himself…”
º See the section, ‘Property Rights are not Ultimate’, on our page, Contra Libertarianism.
Scripture evidences exceptions to numerous things that Christians commonly take as pure, universal, natural and moral laws. The laws prohibiting various degrees of incest in Lev. 18 are often taken as such, even though the offspring of Adam and Eve and Noah were innocent in marrying closely within their family tree. Note the very specific language of the Confession which does not speak of the laws of consanguinity and affinity as being inherently moral or universally binding; rather, the statement of the Confession only necessarily refers to the Confession’s own time, though likely applies to all the time after the laws in Lev. 18 were given. It says simply:
“Marriage ought not to be within the degrees of consanguinity or affinity forbidden in the Word…” (WCF 24.4)
For an arduous lesson in ethics, see Francis Turretin explain numerous of Scripture’s apparent exceptions to the Ten Commandments and other largely natural laws in:
Institutes, vol. 2, 11th Topic, 2nd Question, ‘The Nature of the Moral Law: Are the Precepts of the Decalogue of Natural & Indispensable Right? We Affirm.’, sections 18-33, pp. 12-18
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Conclusion
The place to start below is with Paul Barth’s article, ‘Lex Propria – Proper Law’ (2016). Barth used to be a Theonomist, but anyone who comes to understand the Reformed Orthodox teaching on positive law, as he did, will not be so for long. Barth provides very helpful quotes from Johannes Althusius, William Perkins, Robert Baillie, George Gillespie and John Brown of Haddington. Next, read Barth’s additional article, ‘Natural Law & Divine Positive Law’ (2017), for a helpful and precise comparison between the two principles.
Eventually, be sure to read Turretin’s treatment; but don’t stop with that (as it might be tempting to do). One does not fully understand something until one comes to understand the reasons for it. Delve into the inherent reasons of Nature and the revelation of Nature’s God until you come to grips with understanding why the exceptions are exceptions, and should be exceptions, and why it would be wrong if they were not exceptions.
Don’t quickly settle for simply accepting disjointed and unconnected parts of our ethical duties before God. Strive to be able to harmonize ethical principles that otherwise seem to be contrary to each other, and find their deeper, coherent synthesis. To do this is to attain a truly profound grasp of God’s Revelation and the unity of the world of ethics that God has created us in.
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“Open Thou mine eyes,
that I may behold wondrous things out of thy Law.”
Ps. 119:18
“Every scribe which is instructed unto the Kingdom of Heaven
is like unto a man that is an householder,
which bringeth forth out of his treasure things new and old.”
Mt. 13:52
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Articles
Medieval
Aquinas – Questions 95, ‘Of Human Law’, 96, ‘Of the Power of Human Law’ & 97, ‘Of Change in Laws’ in The ‘Summa Theologica’ of St. Thomas Aquinas, Pt. 2 (1st Part) Third Number (Questions 90-114) trans. Fathers of the English Dominican Province (R. & T. Washbourne, 1915), Treatise on Law, (b) In Particular, pp. 53-83
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1500’s
Sarcerius, Erasmus – ‘Of Human Laws’ in Common Places of Scripture Orderly and after a compendious form of teaching... (London [1538]), pp. lxxi-iii
Sarcerius (1501-1559) was a Lutheran.
Calvin, John – ‘The Importance of Customs Being Conformed to Nature’ †1564 13 paragraphs Being his sermon on 1 Corinthians 11:11-16, from Men, Women, and Order in the Church, pg. 55-59, trans. Seth Skolnitsky
Junius, Francis – ch. 4, ‘Of the Part in Human Laws which is Mutable, and the Causes of the Mutability’ in The Mosaic Polity (1st ed. 1592; 1602; CLP Academic, 2015) Buy This is online in Latin here.
“The human law is that which humans, proceeding by reason, produce from the preceding laws, accommodated first to common just, honest, useful, and necessary conclusions, then to particular determinations for the condition of persons for whose good it is produced, the things or matters concerning which it is produced, and for the circumstances which occur to them.
…
We call determinations that part of human law that circumscribes any of those natural conclusions with specific (as we call it) boundaries, not by the authority of nature, but rather by the judgment of the wisest persons, by the common law of nature specifically accommodated to the mode of individual things.
..
The objects of just proportion exist in three kinds… for the sake of producing specific determinations. For either they are [1] primary objects whose good is seen by natural, divine, and human law; or [2] they are secondary objects that are ordered to the former ones as to their own end; or, [3] finally, they are accidents, by which the previous two objects are commonly clothed in a certain way and change.” – pp. 54 & 56-57
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1600’s
Towerson, Gabriel – Discourse 2, ‘Of the Positive Laws of God, & Particularly of the Law of Moses’ in An Explication of the Decalogue or Ten Commandments, with reference to the Catechism of the Church of England, to which are Premised by Way of Introduction Several General Discourses Concerning God’s Both Natural & Positive Laws (London, 1677), pp. 7-16
Towerson (c.1635-1697) was an Anglican clergyman and theological writer.
Turretin, Francis – Institutes, vol. 2, 11th Topic, 2nd Question, ‘The Nature of the Moral Law: Are the Precepts of the Decalogue of Natural & Indispensable Right? We Affirm.’, pp. 7-18 See especially sections 3-10. Sections 18-33 discuss apparent exceptions to the Ten Commandments, which are often resolved by recognizing positive aspects of them and/or the situations.
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1700’s
Williams, Edward – Ch. 1, ‘Of the Nature & Obligation of Positive Laws & Institutions in General… with Relation to the Ordinance of Baptism’ in Antipaedobaptism Examined... (Shrewsbury, 1789), vol.1, pp. 21-98
Williams (1750-1813) was an evangelical, Welsh, pacifist, Congregationalist/Nonconformist minister, theological writer, and tutor. He was known as the advocate of a moderate form of Calvinism, expounded in ‘An Essay on the Equity of Divine Government & the Sovereignty of Divine Grace’ (London, 1813).
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1800’s
Phillimore, John George – ‘Usage: Written Law Can Never be a Substitute for Usage’ of Principless & Maxims of Jurisprudence (London, 1856), pp. 323-330
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2000’s
Barth, Paul
‘Lex Propria – Proper Law’ 2016 19 paragraphs
In addition to a very helpful article, Barth gives quotes from Baillie, Althusius, Perkins, Gillespie & Brown of Haddington.
Also note the 10 puritan quotations from Henry, Poole, Calvin, Trapp, the Genevan Bible Notes, Ames, Byfield, Nisbet, Gill & Gillespie to the same effect in the comments below the article on 1 Pet. 2:13, “Submit yourselves to every ordinance of man for the Lord’s sake…”
‘Natural Law and Divine Positive Law’ 2017 23 paragraphs
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Mostly Non-Reformed Books on the Law of Nations
1600’s
Grotius, Hugo – Book 2 of The Rights of War & Peace, including the Law of Nature & of Nations… ed. A.C. Campbell (1625; Dunne, 1901), pp. 73-289
Grotius (1583-1645) was a Dutch humanist, diplomat, lawyer, Arminian, Erastian and Latitudinarian theologian, and a jurist. For a sketched summary of Grotius’s thought in Book 2, see the Intro, pp. 8-10.
“Grotius’ concept of natural law had a strong impact on the philosophical and theological debates and political developments of the 17th and 18th centuries. Among those he influenced were Samuel Pufendorf and John Locke, and by way of these philosophers his thinking became part of the cultural background of the Glorious Revolution in England and the American Revolution… Both Biblical revelation and natural law originated in God and could therefore not contradict each other.” – Wikipedia
“Grotius has also contributed significantly to the evolution of the notion of rights. Before him, rights were above all perceived as attached to objects; after him, they are seen as belonging to persons, as the expression of an ability to act or as a means of realizing something.” – Wikipedia
“The great writers of all ages are cited [by Grotius] with a superfluous lavishness… as to give a historic catholicity to his doctrine by showing that the laws he is endeavoring to formulate have, in fact, been accepted in all times and by all men.” – Intro, p. 10
For a summary of some of Grotius’s distinctive points, some of which disagree with Rutherford, see the Intro, p. 11. Rutherford cites Grotius 42 times in Lex Rex.
Selden, John – Of the Dominion, or, Ownership of the Sea, Two Books. In the First is showed that the Sea, by the Law of Nature, or Nations, is not common to all men, but capable of private dominion or propriety, as well as the land. In the Second is proved that the dominion of the British Sea, or that which encompasses the isle of Great Britain, is, and ever has been, a part or appendant of the empire of that island (London: 1652) ToC
Selden (1584-1654) was an Erastian, English jurist, a scholar of England’s ancient laws and constitution, and a scholar of Jewish law. He was known as a polymath; John Milton hailed Selden in 1644 as “the chief of learned men reputed in this land.”
International law in Europe first rose to consciousness into the Modern Era during the Middle Ages, as nations found themselves making mutual policies regarding sea travel and commerce. This was the dominant common place wherein international law theory was discussed up until the work of Grotius, who greatly systematized and broadened the horizons of international law-theory.
Pufendorf, Samuel – Of the Law of Nature & Nations, 8 Books (1672; London, 1729)
Pufendorf (1632-1694) was a German jurist, political philosopher, economist and historian.
“Among his achievements are his commentaries and revisions of the natural law theories of Thomas Hobbes and Hugo Grotius. His political concepts are part of the cultural background of the American Revolution. Pufendorf is seen as an important precursor of Enlightenment in Germany. He was involved in constant quarrels with clerical circles and frequently had to defend himself against accusations of heresy, despite holding largely traditional Christian views on matters of dogma and doctrine…
He occupied himself [in captivity] in meditating upon what he had read in the works of Hugo Grotius and Thomas Hobbes, and mentally constructed a system of universal law. At Leiden, he was permitted to publish, in 1661, the fruits of his reflections under the title of Elementa jurisprudentiae universalis libri duo [Elements of Universal Jurisprudence, in Two Books]. The work was dedicated to Charles Louis, elector palatine, who created for Pufendorf a new chair at the University of Heidelberg, that of the law of nature and nations. This professorship was first of its kind in the world…
In De jure naturae et gentium, Pufendorf took up in great measure the theories of Grotius and sought to complete them by means of the doctrines of Hobbes and of his own ideas on jus gentium…
As regards public law Pufendorf, while recognizing in the state (civitas) a moral person (persona moralis), teaches that the will of the state is but the sum of the individual wills that constitute it, and that this association explains the state. In this a priori conception, in which he scarcely gives proof of historical insight, he shows himself as one of the precursors of Rousseau and of the Contrat social [social contract theory]…
John Locke, Jean-Jacques Rousseau, and Denis Diderot all recommended Pufendorf’s inclusion in law curricula, and he greatly influenced Blackstone and Montesquieu…
Pufendorf and Leibniz shared many theological views, but differed in their philosophical foundation, with Pufendorf leaning toward Biblical fundamentalism.” – Wikipedia
Pufendorf was Erastian in his understanding of the Church.
Rachel, Samuel – Dissertations on the Law of Nature and of Nations trans. John Bate (1676; Washington D.C., 1916)
Rachel (1628-1691) was a German professor of ethics and of natural and international law.
“…Samuel von Pufendorf denied the existence of a positive jus gentium (Law of Nations), distinct from the jus naturale [natural law]. He maintained therein that States were universally subject to the Law of Nature only; in addition there were, of course, rights based upon treaties, and also customs observed between civilized States, but (said he) these treaty rights were valid only between the States that had concluded the treaty, and a State might at any time renounce these customs; such conduct would admittedly expose the State to evils–such as reprisals and censure–but Pufendorf does not seem to attach great importance to these evils, and… they at different times have failed to deter governments and generals…
Accordingly, to attack this doctrine, which favored arbitrariness and based the Law of Nations solely upon the principles of Natural Law established by a priori reasoning, and at the same time to show that by the side of the jus naturae there also exists a positive Law of Nations–this was a signal service. It was left to Rachel to render that service.” – Intro, pp. 7a-8a
For how Rachel’s theory of the Law of Nations differed from that of Grotius, see the Intro, p. 11a.
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1700’s
Heinecke, Johann – A Methodical System of Universal Law: or, The Laws of Nature and Nations, Deduced from Certain Principles, and Applied to Proper Cases, vol. 1 (of the Laws of Nature), 2 (of the Laws of Nations) (London, 1741)
Heinecke (1681-1741) was a German, jurist and professor of philosophy, with a theological background.
“Heineccius belonged to the school of philosophical jurists. He endeavoured to treat law as a rational science, and not merely as an empirical art whose rules had no deeper source than expediency. Thus he continually refers to first principles, and he develops his legal doctrines as a system of philosophy.” – Wikipedia
de Vattel, Emer – The Law of Nations; or, Principles of the Law of Nature, applied to the Conduct and Affairs of Nations and Sovereigns (1758; Philadelphia, 1883) ToC
de Vattel (1714-1767) was a Swiss international lawyer. He was largely influenced by Dutch jurist Hugo Grotius. He is most famous for this work.
Gros, John Daniel – Natural Principles of Rectitude, for the Conduct of man in all States & Situations of Life; Demonstrated & Explained in a Systematic Treatise on Moral Philosophy. Comprehending the Law of Nature– Ethics– Natural Jurisprudence– General Economy– Politics– & the Law of Nations (New York, 1795)
Gros (1737-1812) was a minister in New York City of a German reformed, church and a professor at Columbia College.
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1800’s
Lorimer, James – The Institutes of the Law of Nations: a Treatise of the Jural Relations of Separate Political Communities, vol. 1, 2 (Edinburgh, 1883) ToC 1, 2
Lorimer (1818–1890) was a Scottish advocate and regius professor of public law at Edinburgh. He was an authority on international law. His legal philosophy was one of Natural law that stood against the prevailing Legal positivism. Lorimer has some respect for God and religion, but does not strongly hold to Christian orthodoxy in this work.
Lorimer’s concerns with the application of natural law to international relations were particularly influential in formalizing the forms of inter-state recognition in 19th century continental Europe.
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On the History of International Law
Leger, J. St. – The “etiamsi daremus” of Hugo Grotius. A Study in the Origins of International Law ([Dissertation Pontificium Athenaeum Internationale “Angelicum”] Rome, 1962)
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Quotes
1500’s
Neil Hemmingsen
On the Law of Nature: A Demonstrative Method (1562), ed. E.J. Hutchinson (Grand Rapids: CLP Academic, 2018), pp. 125-126
“[‘Equity’ is] the suitable application of the law to the demands of the situation, in which is seen the law’s will and intention [i.e. the spirit of the law]… or it is the moderating and amendment of the law that comes about from the prudence of the judge accommodating himself to the circumstances of the case, and bending the law to the case, not the case to the law.”
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Zacharias Ursinus
Commentary on the Heidelberg Catechism, 34th Lord’s Day, ‘Of the 10 Commandments’, pp. 490-491
“II. What are the Parts of the law, and what their Differences?
Laws are divine and human. Human laws are such as are instituted by men, and which bind certain persons to certain external duties concerning which there is no express divine precept or prohibition with a promise of reward and threatening of punishment, corporal and temporal. Human laws are either civil or ecclesiastical. Civil are such positive laws as are instituted by magistrates, or by some corporation, or state, in reference to a certain order or class of actions to be observed in the state in contracts, trials, punishments, &c.
Ecclesiastical, or ceremonial laws, are those which the church institutes in reference to the order which is to be observed in the ministry of the church, and which lay down certain prescriptions in reference to those things which contribute to the divine law….
Divine laws are those which God has instituted, which belong partly to angels, partly to men, and partly to certain classes of men. These do not only require external actions or obedience, but they also require internal qualities, actions and motives: nor do they merely propose temporal rewards and punishments; but also such as are spiritual and eternal. They are also the ends for which human laws are instituted. Of divine laws there are some that are eternal and unchangeable; whilst there are others that are changeable; yet only by God himself, who has instituted them.
The divine law is ordinarily divided, or considered as consisting of three parts; the moral, the ceremonial and the judicial.”
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1600’s
Johannes Althusius
Politica, 29.4
“The enactment of law is the process by which the magistrate, with the consent of the optimates and estates of his imperium and realm, legislates what is fair, useful, and necessary to the commonwealth.4 The magistrate shall especially see that the customs, temperament, and ancient rights of the nation are respected, and that new laws are accommodated to them.”
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Joseph Hall
Cases of Conscience Practically Resolved Containing a Decision of the Principal Cases of Conscience of Daily Concernment & Continual Use Amongst Men: Very Necessary for their Information & Direction in These Evil Times (London, 1654), 3rd Decade, Case 6, ‘Whether the Laws of Men do Bind the Conscience, & How Far We are Tied to Their Obedience?’, pp. 218-9
“As then we are wont to say in relation of our actions to the laws of God, that some things are forbidden because they are sinful, and some things are sinful because they are forbidden, so it holds also in the laws of men: some things are forbidden because they are justly offensive and some other things are only therefore offensive because they are forbidden;”
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John Owen
The Works of John Owen (NY: Robert Carter, 1852), vol. 7, Nature & Causes of Apostasy from the Gospel, ch. 12, pp. 252-53
“Too high an estimation of any peculiar way of worship is apt to entice the minds of some into a hurtful confidence in these things. Having an apprehension that they alone have attained unto the right way of gospel worship and the administration of its ordinances, and that, perhaps, on such accounts as wherein they are eminently deceived, they begin first greatly to value themselves, and then to despise all others, and, if they can, to persecute them. This insensibly works them into a trust in that which they esteem so excellent, and that unto an open neglect of things of a greater weight and moment.
Thus is it not unusual to see persons who are under the power of some singular opinion and practice in religion to make one thing almost their whole business, the measure of other things and persons, the rule of communion and of all sincere love;—to value and esteem themselves and others according unto their embracing or not embracing of that opinion…
Wherefore, although we ought greatly to prize and to endeavour after the true order of the church of Christ, the purity of worship, and regular administration of ordinances, yet let us take heed that we prize not ourselves too much on what we have attained; for if we do so, we shall be very apt to countenance ourselves in other neglects thereby, which will certainly bring us into a spiritual sickness and declension.”
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1800’s
Thomas M’Crie Sr.
‘On the Right of Females to Vote in the Election of Ministers and Elders’, pp. 3, 5 from Miscellaneous Writings, Chiefly Historical (1841), pp. 669-76
“But I consider that there is a wide difference between the case of a congregation or society in which the right [of ladies to vote for ecclesiastical officers] had been recognized, at least tacitly and by practice, and the case of another congregation or society which had never recognized it, but had uniformly acted on a different principle.
In the latter case, I would think it my duty to continue the common practice, not only because it had been the custom, but also because I looked on it as well-founded. And if any individuals should complain that they were denied their rights, I would say to them,
‘You are not denied any rights which were ever recognized in the body of which you are members; and provided you think that the right of election is too much circumscribed by its laws or usages, the least thing that is incumbent on you is, to wait until you can obtain a rectification of the supposed evil in a regular way, and, in the meantime, to show me and those whose province it is to authorize the alteration, that our present practice and mode of management is faulty and unscriptural.’
…
It is generally allowed that when he refers to ‘nature itself’, he means to include custom, which is in many cases the best expounder of those principles and feelings which are natural to man, and recognized by those who are unenlightened by divine revelation; and by the manner in which he appeals to it, the apostle teaches us that there is a regard due to such dictates even in what relates to the Church; as we are taught by several places of the New Testament, that, from inadvertence or from other causes, Christians and Christian Churches may fall into opinions and practices, which those who had only nature’s dim lamp to guide them avoided.”
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Civil Law Maxims
Phillimore, John George, Principless & Maxims of Jurisprudence (London, 1856), p. 118
“Cum principalis causa non existit ne ea quidem quae sequuntur locum habent.”
“When the principal cause has no existence, the consequences of it cease.”
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Wikipedia – ‘Brocard (law)’
“Leges humanae nascuntur, vivunt, moriuntur.” “The laws of man are born, live, and die.”
“Illustrates that laws are made, are in force for a period, and then become obsolete.”
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Malum in se vs. Malum Prohibitum “Bad in & of itself vs. Prohibited Bad”
Intro
This traditional distinction in law is roughly equivelent to natural law vs. positive law with respect to evil. This is the commonplace in which secularists in the legal field discuss their theories as to how these things relate and qualify each other in relation to society’s changing laws, and the foundation (or lack thereof) for them.
While one ought always to prove all things, and take every thought into the captivity of the lordship of Christ, yet one can learn a lot from secularists discussing such natural ethics, especially as they often have a very detailed knowledge within their specialty.
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Article
Dimock, Susan – ‘The Malum prohibitum—Malum in se Distinction & the Wrongfulness Constraint on Criminalization’ Abstract in Dialogue: Canadian Philosophical Review, vol. 55, issue 1 (Mar, 2016) , pp. 9-32
Abstract “…I join the fray, arguing (a) that the terms cannot be interpreted literally, but that (b) there is a way of drawing the distinction that is both plausible and useful. Conduct mala in se is conduct that must be prohibited in any just polity, while mala prohibita conduct may but need not be criminalized. I employ concepts from social contract theory in the explanation.”
Note that while social contract theory is insufficient as a sole basis for politics, yet the free consent of the community of the people unto certain positive forms of government plays a large part in natural and Scriptural, reformed ethics.
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Latin Articles
1500’s
Oldendorp, Johann – A Judicial [Forensis] Disputation on Law & Equity in A Collation of Civil & Canonical Law… (Leiden, 1547)
Oldendorp (1480-1567) was a German, Lutheran, jurist and reformer.
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1600’s
Winkler, Benedikt – 5 Books of the Principles of the Law, in which the Origin [Genuina] of the Law of Nature and Positive Law, and the Principles and Most Firm Fundamentals of Jurisprudence are Displayed, and the Highest End of it, to the Eyes, is Set Down, and its Divine Authority is Proved (Frankfurt: 1615) This work has a subject index at the end, but no table of contents.
Book 1
Ch. 10, ‘Human Law is Twofold: Natural & Civil…’
…
Book 4
Ch. 4, ‘Of the Appellation of ‘The Law of the Nations”
…
Book 5, ‘Of Positive, or Civil Law’
Winkler (1579-1648) was a Lutheran.
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Liebenthal, Christian – A Juridical Disputation on the Division of Things & of that which is Acquired by Lordship, by the Law of Nature & of Nations (Giessae Hessorum, 1619) GB
Liebenthal (1586-1647) was a German, Lutheran, lawyer and philosopher.
Maetz, Carolus – A Forest of Eminent Questions: Philological, About Antiquity, Philosophical, a True and Most Able View of Theology (Utrecht, 1650)
ch. 16, ‘Of the Law of Nations’, p. 143 ff.
ch. 17, ‘Of custom [consuetudine]’, p. 155 ff.
ch. 18, ‘Of Natural Inclination’, p. 171
ch. 19, ‘Of Natural & Arbitrary Custom’, p. 187 ff.
Maetz (1597-1651) was of Flemish lineage and a professor of theology at Utrecht.
Hottinger, Johann Heinrich – The Laws of the Nations & of the Church, or a Disputation on Human & Divine Law, out of Ps. 147:19-20 (Zurich, 1666)
Durr, Johann Conrad – A Philosophical Disquisition on the Law of Nature with the Consensus of the Law of the Nations (Meyer, 1671)
Durr (1625-1677) was a Lutheran professor of moral philosophy and theology at Altdorf, Germany.
Rhode, Marcus – The 4th Disputation, on the Ways of Acquiring, According to the Law of Nations… (Frankfurt, 1684)
Rhode (1640-1715) was a Lutheran professor of eloquence and law at Frankfurt, Germany.
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1700’s
Bertling, Ernst August – Of the Voluntary Law of the Nations (Hagerus, 1745) This is a disputation.
Bertling (1721-1769) was a Lutheran professor of theology at Helmstedt and Danzig.
De Moor, Bernard – ch. 11, sections 13-21, ‘The Positive Law of God’ in A Continuous Commentary on John Marck’s Compendium of Didactic & Elenctic Christian Theology (Leiden, 1761-71), vol. 2, pp. 541-86
van der Marck, Frederik Adolf – Positions on the Law of Nature & of the Nations (Groningen, 1781)
Marck (1710-1800) was a Dutch professor of law at Groningen in the reformed tradition. Marck was initially dismissed in 1773 from Groningen over charges of heterodoxy, for subordinating Scripture to the laws of nature and reason. He was restored in 1795 to his professorship.
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Latin Books
1500’s
Oldendorp, Johann
Common Places of Civil Law… (1545/1551) This is essentially a law dictionary with terms in alphabetical order.
An Introduction to the Civil Law of Nature & of Nations (1539) ToC
Oldendorp (1480-1567) was a German, Lutheran, jurist and reformer.
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1600’s
Klenck, Johannes – Institutions of the Law of Nature & of the Nations, out of Hugo Groitus 4th ed. (d. 1672; Jena 1716)
Klenck (1618-1672) was a Dutch jurist and professor of philosophy in Amsterdam. He taught physics, metaphysics, logic, ethics and politics. His theological perspective is not known.
Ziegler, Kaspar – Hurried Notes & Animadversions on the Books of Hugo Grotius on the Law of War & Peace, in which is Explicated the Law of Nature & of Nations 2nd ed. (Wittenberg, 1676)
Ziegler (1621-1690) was a Lutheran professor of law at Wittenberg, Germany.
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1700’s
Buddeus, Johann Franz – Institutions of the Law of Nature & the Law of the Gentiles… to the Method of Hugo Grotius (Halae Magdeburgicæ: 1701)
Buddeus (1667-1729)
Thomasius, Christian – Fundamentals of the Law of Nature & the Law of Nations, Deduced by Common Sense, throughout which is Distinctly Treated the Principals of Honesty, Justice & Decorum, Adjoined to which is an Emendation to those Fundamentals on the Institutions of Divine Jurisprudence (Halle & Leipzig, 1718)
Thomasius (1655-1728) was a Lutheran professor of Natural Law and Law at Leipzig and Halle, Germany respectively.
Darjes, Joachim Georg
Institutions of Universal Jurisprudence, all parts of which Explain by a Scientific Method the Law of Social Nature and of Nations (Frankfurt, 1740)
Observations on the Law of Social Nature & of Nations, Selections According to a Systematic Order, vol. 1, 2 (Guth, 1751/4)
Darjes (1714-1791) was a professor of philosophy and law at Jena and Frankfurt, Germany, in the Lutheran context.
Wolff, Christian – Institutions of the Law of Nature & of Nations (1750; 1754)
Wolff (1679-1754), a Lutheran, was the most eminent German philosopher between Leibniz and Kant. His main achievement was a complete oeuvre on almost every scholarly subject of his time, displayed and unfolded according to his demonstrative-deductive, mathematical method, which perhaps represents the peak of Enlightenment rationality in Germany.
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On the Difference Between Natural & Positive Laws
Quotes
John Owen
Excercitation 4, ‘On the Causes of the Sabbath’, pp. 75-76 in A Treatise on the Sabbath… new ed., rev. & ed. J.W. Brooks (London, 1829)
“There are two sorts of laws whereby God requires the obedience of his rational creatures, which are commonly called moral and positive…
Positive laws are taken to be such as have no reason for them in themselves – nothing of the matter of them is taken from the things themselves commanded – but do depend merely and solely on the sovereign will and pleasure of God. Such were the laws and institutions of the sacrifices of old; and such are those which concern the sacraments and other things of the like nature under the New Testament.
Moral laws are such as have the reasons of them taken from the nature of the things themselves required in them; for they are good from their respect to the nature of God himself, and from that nature and order of all things which he hath placed in creation. So that this sort of laws is but declarative of the absolute goodness of what they do require; the other is constitutive of it, as unto some certain ends.
Laws positive, as they are occasionally given, so they are esteemed alterable at pleasure. Being fixed by mere will and prerogative, without respect to any thing that should make them necessary antecedent to their giving, they may by the same authority at any time be taken away and abolished.”
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Francis Turretin
Institutes, vol. 2, 11th Topic, Question 1, section 4, p. 2
“IV. Now this law of God is divided in general into natural and positive. As the right of God is twofold (one natural, founded in the perfectly just and holy nature of God; the other positive, depending on the will of God alone in which He also shows his own liberty), so there is a positive law of God built on the free and positive right of God (with respect to which things are then good because God commands them). Hence God was free either not to give such a law or to institute otherwise (such as the law relating to food and the symbolical law given to Adam [Gen. 2:16-17] and the ceremonial laws of the Old Testament, in which there was no moral goodness or evil per se, but only from the command of God).
There is another (natural) founded on the natural right of God, with regard to which things are not called just because they are commanded, but are commanded because they were just and good antecedently to the command of God (being founded on the very holiness and wisdom of God). And such is its nature that (the creation of man being supposed) it must have been given to him, since it prescribes to him indispensable duties to be performed by all, always and everywhere.”
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Articles
Palmer, Herbert & Daniel Cawdrey – Sabbathum Redivivum, or the Christian Sabbath Vindicated… Part 1 (1645)
ch. 1, ‘Of the Term of a Moral Law…’
pp. 7-9, ‘The Definition of a Moral Law’
pp. 9-12, ‘On Moral-Natural Laws’
pp. 12-16, ‘On Moral-Positive Laws’
ch. 2, ‘Rules to Know a Law to be Moral, though but Positive’
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On the Relation of Natural to Positive Laws
Quotes
1600’s
Samuel Rutherford
A Survey of the Survey of that Sum of Church Discipline Penned by Mr. Thomas Hooker… (1658), p. 461
“It’s the Law of Nature in general that the whole rule the part, but it follows not [that] therefore every member is to submit to every positive law of the whole though most unjust; the member is to submit to every Law of Nature commanded by the whole:
The little finger infected with a gangrene is to submit to the whole man that it be cut off for the safety of the whole body, but its against particular nature that it be cut off, but most suitable to universal nature [regarding the whole]. So in the general it’s natural for the creature-rational to obey the Creator; but it follows not, but it’s a mere positive law that Peter give his life for the Gospel when God by a positive command calls him to it; and the law-positive, if divine, is not contrary to the law of universal-nature [of the whole].”
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Richard Baxter
A Christian Directory: a Sum of Practical Theology and Cases of Conscience Buy (1673), pt. 4, Christian Politics, 4. ‘Directions to lawyers about their duty to God’
Ҥ 1. Direction 1. Take the whole frame of polity together and study each part in its proper place, and know it in its due relation to the rest: that is, understand first the doctrine of polity and laws in genere [in their genera], and next the Universal Polity and laws of God in specie [in specific]; and then study human polity and laws as they stand in their due subordination to the polity and laws of God, as the by-laws of corporations do to the general laws of the land.
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§ 3. [Direction] 2. And he that understands not the Divine Dominium & Imperium as founded in Creation (and refounded in Redemption), and mans subjection to his Absolute Lord, and the Universal Laws which He has given in Nature and Scripture to the world, can never have any true understanding of the polity or laws of any kingdom in particular: No more than he can well understand the true state of a corporation, or the power of a mayor, or justice, or constable, who knows nothing of the state of the kingdom, or of the king, or of his laws. What ridiculous discourses would such a man make of his local polity or laws?
He knows nothing worth the knowing, who knows not that all kings and States have no power but what is derived from God, and subservient to Him; and are all his officers, much more below him, than their justices and officers are to them; and that their laws are of no force against the laws of God, whether of natural or supernatural revelation.
And therefore it is most easy to see that he that will be a good lawyer, must first be a divine; And that the atheists that deride or slight divinity, do but play the fools in all their independent broken studies. A man may be a good divine that is no lawyer, but he can be no good lawyer that understands not theology. Therefore let the government and laws of God have the first and chiefest place in your studies, and in all your observation and regard:
1. Because it is the ground of humane government, and the fountain of man’s power and laws.
2. Because the divine polity is also the end of human policy: Man’s laws being ultimately to promote our obedience to the laws of God, and the honor of his government.
3. Because God’s laws are the measure and bounds of humane laws; against which no man can have power.“
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Francis Turretin
Institutes, vol. 2, 11th Topic, 2nd Question, ‘The Nature of the Moral Law’, section 18, pp. 12
“XVIII. The natural law cannot be said to have undergone a change by the division of lands and the ownership of possessions and goods introduced by the law of nations. No natural law commands a community of goods or prohibits their distribution. If all things are said to have been common from the beginning, this is to be understood not so much positively (as if God had enacted a law making all things common) as negatively (because nothing was expressly determined concerning it, since there was as yet no necessity for it). Afterwards a distinction and ownership of goods was justly introduced with the authority of God, to prevent controversies, to restrain external violence and to afford certainty to inheritances and make a distinction in conditions (without which human society could not exist).”
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Article
Barth, Paul – ‘Natural Law and Divine Positive Law’ 23 paragraphs
The first half explains Natural Law; the second half is entitled, ‘Divine Positive Law is Superadded to Natural Law’.
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All Human Laws, as Human, are Positive Law
Francis Turretin
Institutes, vol. 2, 11th Topic, 2nd Question, ‘The Nature of the Moral Law’, section 34, p. 18
“XXXIV. …Human laws are positive, binding only on the part of the legislator, not on the part of the thing. On the contrary, the moral law [of God] is of natural right, binding in itself and on the part of the thing.”
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Civil & Church Governments are by Positive Law, but not the Family
Civil Government is by Positive Law
John Owen
p. 567 of A Dissertation on Divine Justice... in Works, vol. 10
“The positive right of government, so to speak, is that which magistrates have over their subjects;”
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That Civil Government is by Positive Law, though the Family is Not
Article
Rutherford, Samuel – Question 2, ‘Whether or Not Government be Warranted by the Law of Nature?’ in Lex Rex… (1644; Edinburgh, 1843), pp. 1-3
Rutherford makes a key distinction: Civil society and government is natural in its root in that persons incline by nature to the benefits of civil society. However, families and persons joining together by a common consent in order to have a particular, delegated civil government, is an artificial and ‘positively moral’ action. Hence civil governments in their concrete existence are from a secondary law of nature, or the law of nations (which is founded on nature).
Family governing, on the other hand, has its rise purely from nature (that is from birth, and the natural inclinations towards procreating) and involves no positive, artificial construct (given the assumption of the marriage already, which has certain positive aspects to it).
Needless to say, as families do not presuppose a Civil State, and may exist without them, and as Civil States are positively constructed upon the foundations of families (at least in principle, and almost always in fact), so families are more natural and basic than civil governments and even civil society, and ought to be respected as such, in accord with the Law of Nature (which is God’s Law).
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Church Government is by Divine Positive Law
Samuel Rutherford
The Divine Right of Church Government... (1646)
pp. 10-11
Answer 1: If Paul restrain this [2 Tim. 4:1-2] to one special commandment, sure it is so general and comprehensive a commandment of feeding the flock, as takes in all the special positive commandments belonging to feeding, by both Word and discipline, which is enough for the perpetuity of all positive precepts of discipline and policy even till Christ’s appearance to judge the world…”
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p. 18
“…He is a visible Head in this sense, in that he reigns and rules, even in the external visible policy of his Church, through all the catholic, visible Church, in his officers, lawful synods, ordinances, giving them laws in all positive externals…
I shall believe that Christ must in all positive things of external policy, give to them particular laws in the Scripture and rule them [civil magistrates in his Church]; and that they being members, not the Head, must as particularly be ruled in all externals-positive, by the will and Law of the Head Christ…
2. The positives of the policy of Christ’s house must be congruous to a supernatural end, the edification of souls…”
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How Church Government is in its Fountain Positive, though includes Natural Law in Some Respects
Article
Rutherford, Samuel – Ch. 14, pp. 200-203 of A Peaceable & Temperate Plea… (1642)
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Natural Law, in Necessity, Over-Rules Positive Law when They Conflict
For more on this, see the Rutherford, Durham & Turretin quotes under the Quotes section on our page, On the Relations Between the 1st & 2nd Tables of the Law.
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Order of Quotes
Scottish Covenanters
Rutherford
Apollonius
Turretin
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6 Scottish Covenanters 1606
Ministers: John Forbes, John Welch, Andrew Duncan, Robert Dury, John Sharp, Alexander Strachan
For background on the context, see M’Crie, Story of the Scottish Church… (London, 1875), circa p. 97.
‘The Proceedings Against the Prisoners in Blackness [Castle]… as it was Penned by Themselves…’ in David Calderwood, History of the Kirk of Scotland 6.462
“First, that this declinatour [declining of an order from someone in authority] was not against neither the title and intention of the law…
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Thirdly, all defenses, seeing they are de jure naturali et communi [by natural and common law], God, and nature, and all laws, permitting lawful defenses, and seeing this declinatour was propouned only by way of defense, therefore it cannot be compted [accounted] treason.”
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Samuel Rutherford
The Due Right of Presbyteries... (1644)
pt. 1, p. 8
“…as in a Church in an island, where the pastors are dead or taken away by pest[ilence] or otherways; the people may ordain pastors or rather do that which may supply the defect of ordination, as David without immediate revelation from Heaven to direct him, by only the Law of nature, did eat showbread;
So is the case here, so answer the casuists and the schoolmen, that a positive law may yield in case of necessity to the good of the Church; so Thomas, Molina, Suarez, Vasquez, Vigverius, Sotus, Scotus, Altisiodorensis, Durand, Gabriel; and consider what the learned Voetius says in this:
What if in an extreme case of necessity, a private man, endued with gifts and zeal should teach publicly, after the example of the faithful at Samosaten. Yea and Flavianus and Diodorus preached in Antioch, as Theodoret says; yea, says Voetius, an ordinary ministry might be imposed on a laic, or private person by the Church, though the presbytery consent not, in case of necessity. God (says Gerson) may make an immediate intermission of a calling by bishops; yea (says Anton. speaking of necessity’s law) the Pope may commit power of excommunication, quia est de jure positive, pure laico & mulieri, to one mere laic, or a woman; though we justify not this, yet it is hence concluded that God has not tied Himself to one set rule of ordinary, positive laws: a captive woman (as Socrates says) preached the Gospel to the king and queen of Iberranes, and they to the people of the land.”
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pt. 2, p. 245
“2. The wife is not to separate a toro & mensa [from bed and table] from the excommunicated husband, nor the son from the excommunicated father; no positive law can cancel the Law of nature…”
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Lex Rex (1644; Edinburgh: Ogle, 1843)
“32. They [presbyterians] hold (I believe with warrant of God’s Word) if the king refuse to reform religion, the inferior judges, and assembly of godly pastors and other church-officers may reform; if the king will not kiss the Son, and do his duty in purging the House of the Lord, may not Elijah and the people do their duty and cast out Baal’s priests [1 Kings 18:19-24, 30, 37-40]. Reformation of religion is a personal act that belongs to all, even to any one private person according to his place.
33. They may swear a covenant without the king, if he refuse, and build the Lord’s house (2 Chron. 15:9) themselves, and relieve and defend one another when they are oppressed. For my acts and duties of defending myself and the oppressed do not tie my conscience conditionally, so the king consent, but absolutely, as all duties of the law of nature do (Jer. 22:3; Prov. 24:11; Isa. 58:6; 1:17).
34. The Popish Prelate [John Maxwell] condemns our reformation because it was done against the will of our popish queen. This shows what estimation he has of popery and how he abhors protestant religion.”
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p. 66 rt col
“Mortifications [donations] given to religious uses by a positive law may be recalled by a more divine and stronger law of nature, such as this, ‘I will have mercy and not sacrifice.’
Suppose David, of his own proper heritage, had given the showbread to the priests; yet, when David and his men are famishing, he may take it back from them against their will. Suppose Christ had bought the ears of corn and dedicated them to the altar; yet might He and his disciples eat them in their hunger [Mt. 15:5-6]. The vessels of silver, dedicated to the church, may be taken and bestowed on wounded soldiers.”
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question 16, p. 67
“I presuppose that the division of goods does not necessarily flow from the law of nature, for God made man, before the Fall, lord of the creatures indefinitely [Gen. 1:26-30]; but what goods be Peter’s, and not Paul’s, we know not [from nature’s law]…
If I have leave to permit that, in time of necessity, all things are common by God’s law, [then] a man travelling might eat grapes in his neighbor’s vineyard, though he was not licensed to carry any [a]way. I doubt if David, wanting [lacking] money, was necessitated to pay money for the showbread, or for Goliath’s sword, supposing these to be the very goods of private men and ordinarily to be bought and sold.
Nature’s law in extremity, for self-preservation, has rather a prerogative royal above all laws of nations and all civil laws than any moral king. In this meaning:
1. Any one man is obliged to give all he has for the good of the commonwealth, and so far the good of the king, inasfar as he is head and father of the commonwealth.
2. All things are the king’s, in regard of his public power to defend all men and their goods from unjust violence.
3. All are the king’s, in regard of his act of conservation of goods, for the use of the just owner.
4. All are the king’s in regard of a legal limitation, in case of a damage offered to the commonwealth. Justice requires confiscation of goods for a fault; but confiscated goods are to help the interested commonwealth, and the king, not as a man (to bestow them on his children) but as a king. To this we may refer these called bona caduca et inventa [goods fallen and found], things lost by shipwreck or any other providences…”
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p. 68 lt col top
“…the law of nations, founded upon the law of nature… and the introduction of kings cannot overturn nature’s foundation; neither civility nor grace destroyeth but perfecteth nature…”
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“I conceive, though the State make a positive law, for order’s cause, that the king ordinarily convene parliaments; yet, if we dispute the matter in the court of conscience, the [parliamentary] estates have intrinsically (because they are the estates, and essentially judges of the land) ordinary power to convene themselves.”
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p. 184 rt col
“Assertion 2: That the king only has the power of war and raising armies must be but a positive civil law. For:
1. By divine right, if the inferior judges have the sword given to them of God, then have they also power of war and raising armies.
2. …as therefore the king cannot take from one particular man the power of the sword for natural self-preservation, because it is the birthright of life, neither can the king take from a community and kingdom a power of rising in arms for their own defense…
3. Because no king, no civil power can take away nature’s birthright of self-defense from any man or a community of men.”
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The Divine Right of Church Government... (1646), Appendix, Intro to Scandal, question 6, pp. 81-83
“…in the doctrine of scandal, which is more intricate and obscure than every divine conceives, God places acts of providential necessity as emergent significations of his approving will, which are so to us in place of a divine commandment of God’s revealed will, and these providential acts of necessity do no less oblige us to moral obedience than any of the express written commandments of God. I clear it thus:
There is an express law, It is sin and unlawful for David, or any man, who is not one of the Lord’s priests, to eat showbread. But God comes in and puts David in such a posture of divine providence that if he eat not showbread, he shall be sinfully guilty of violating a higher moral law of God, who says, ‘I will have mercy and not sacrifice.’ Then David shall be cruel to his own life, and sin against the Sixth Commandment, ‘Thou shalt do no murder,’ if he eat not; for not to eat, when you are in a providential condition of starving, if you may have it, is to kill yourself, and this providential condition does no less oblige you to the moral obedience of the Sixth Command than if God in the letter of the Law should command you to eat.
This fact of David was not done by any extraordinary impulsion of the Spirit, but by a constant channel that providence ordinarily runs in, according to which I, or any professor [of Christianity] must be obliged to prefer a work of mercy to sacrifice, that is, by which we are to give obedience to the Sixth Command, which is not to kill; even as without extraordinary impulsion, I may absent myself from hearing the Word when I find going to Church may endanger my life, for non-obedience to affirmatives [affirmative commands] in a greater necessity is ordinary.
And therefore Christian prudence, with which the Wisdom of God keeps house, Prov. 8:12, does determine many things of scandal: And prudence is a virtue commanded in the Word of God, for a wise man observes times, and so will he observe all other circumstances…
Now these [things against a positive divine law] we are upon no ordinary necessity to do, but such as may encroach upon the hazard of the loss of life, in which case an exigence of providence does stand for a command of non-murdering; had Saul and his army been reduced to a danger of starving in a wilderness, and could have no food except they should kill and eat the cattle of the Amalakites, conceive the Lord’s preferring of mercy before sacrifice should warrant them to eat of the Amalakites cattle, yet would this providential necessity be so limited as it may fall out that it stand not for a divine command, for it holds in affirmative commands only…”
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Wilhelm Apollonius
A Consideration of Certain Controversies at this Time Agitated in the Kingdom of England, Concerning the Government of the Church of God (London: G.M., 1645), ch. 5, ‘Of the Ecclesiastical Ministry, and the Exercise thereof’, pp. 77-78
“2. That private Christians in an extraordinary case, in a Church to be erected or that is decayed and ruined, may sometimes publicly preach the Word of God for the planting a Church when there are not such as by God’s ordinary call have received from God power to preach the Word. For the positive ritual law of God gives place to the moral law of God when necessity requires it.
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Francis Turretin
Institutes ed. Dennison, Jr. (P&R), vol. 3, 18th Topic, Question 23
p. 219
“XII. Tenth, we must always distinguish between the state of the church constituted and the state of the church to be constituted; the tranquil and well-ordered state and the same perturbed and corrupted. Many things are lawful in a disturbed condition of the state which would not be lawful in a peaceful and well-composed condition, where all things are rightly ordered and done according to the laws. For then necessity (which knows no law) does many lawful things which (if the necessity was removed) would have to be blamed.”
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p. 220
“XVI. Second, the necessity of the case makes many things lawful which otherwise would not be lawful, in domestic affairs as well as in politics. If the doorkeeper of a house is overcome by a lethargy or by apoplexy, he cannot prevent the entrance of thieves, even though it is lawful for any servant to take the keys and to close the gates against them.
If he to whom the care of supporting a family is committed denies bread to his children, who would say that it is not lawful for anyone of the domestics to supply them with bread if he can so that they may not perish with hunger? If the father himself rages for the destruction of his children, should not his arms be wrested from him, his children removed and entrusted to a guardian, not waiting for the judgment of a magistrate? Nay, a friend and neighbor can take this upon himself until the public authority has made some provision for them.
When a fire is raging, who doubts that it is the duty of all to bring water to extinguish it, especially when they cease to whom this care pertained? Thus in a republic, if the rulers and prefects snore while the enemy approaches; if the gatekeepers open the gates to him; will it not be lawful for any citizen to snatch the keys from the hand of the betrayer in order to shut the gates against the enemy and to call to arms?…
When the thing itself calls, what need is there to seek an external call? Nay, if they should cease form a regard to obedience, unmindful of the oath given to their prince, they would be deservedly convicted of perfidy and treachery because here the consciousness of wickedness alone pollutes, from which no one purges himself, unless according to his ability he resists the inrushing evil.”
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Certain Divine Positive Laws Overrule Natural Laws
Intro
It appears that the justification for the below is that God, of infinite worth in his nature, power and wisdom, insofar as He has an inalienable, divine right as Creator and Sovereign of all Creation, and as He is the mysterious First Cause of all natural things, is able to govern and dispose of his creatures as He will (within certain moral limits).
This is especially true in that sinners have no rights before God, but the sinner shall surely die (Eze. 18:20); this sentence may be executed in whatever way God may so choose. So God may condemn the Canaanites (for their especially remarkable, heinous moral sins) to be exterminated and give their land to the Israelites. This prerogative of God may be, and was, delegated to the human instrumentality of the Israelites, who did such at the positive command of God, bearing his authority and special will in it.
Such an offensive (not defensive) extermination, though, would be unlawful in all regular circumstances, being against the law of nature in numerous respects; so Rutherford argues in his Dispute Against Pretended Liberty of Conscience. What is unlawful to us in our creaturely relations is not necessarily unlawful to God with respect to his dominion over, and ownership of all creation, insofar as He is the First Cause and Judge of All the Earth.
Abraham being commanded to sacrifice his only son (Gen. 22) appears to be another such example of a special positive law of God overriding a natural law (the 6th Commandment). In addition to the above consideration (and others), Abraham had been given a special promise of God (Heb. 11:17-18, which would possibly override nature if need be) that the promised seed would come from Isaac. Hence, Abraham, by faith, concluded that if he killed Isaac, that God would raise him from the dead (Heb. 11:19).
As for Isaac’s part, the command of God to Abraham to sacrifice Isaac positively bound Isaac, when it was communicated to him, to passively suffer the unnatural event (the positive and spiritual law superseding what was natural) with patience and faith. In some circumstances persons have a right to lawfully lay down their own life in a moral way (Jn. 15:13). Jesus also did such at a special, positive enjoining of his Father.
Murder is chiefly wrong because, in all regular circumstances, it ends a person’s earthly life. However, if it does not do that, then it possibly may not be wrong, when it is commanded of God, secured by his special promise, and is perceived and acted on in faith. Needless to say, we today have no such special promise or command of God, and hence no warranted faith for such.
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Quotes
Samuel Rutherford
Lex Rex... (1644; Edinburgh: Ogle, 1843)
p. 49 rt col
“God, to whom belongs the world and the fulness thereof, disponed to Abraham and his seed the land of Canaan for their inheritance and ordained that they should use their bow and their sword for the actual possession thereof; and the like divine right had David to the Edomites and Ammonites, though the occasion of David’s taking possession of these kingdoms by his sword did arise from particular and occasional exigencies and injuries; but it follows in no sort that, therefore, kings now wanting any word of promise, and so of divine right to any lands, may ascend to the thrones of other kingdoms than their own by no other title than the bloody sword.
That God’s will was the chief patent here is clear, in that God forbade his people to conquer Edom, or Esau’s possession, when as He gave them command to conquer the Amorites. I doubt not to say, if Joshua and David had no better title than their bloody sword, though provoked by injuries, they could have had no right to any kingly power over these kingdoms; and if only success by the sword be a right of providence, it is no right of precept.”
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“Though the children of Ammon did a high injury to David, yet no injury can be recompensed in justice with the pressure of the constrained subjection of loyalty to a violent lord. If David had not had an higher warrant from God than an injury done to his messengers, he could not have conquered them. But the Ammonites were the declared enemies of the church of God, and raised forces against David when they themselves were the injurers and offenders.
And if David’s conquest will prove a lawful title by the sword to all conquerors, then may all conquerors lawfully do to the conquered people as David did; that is, they may ‘put them under saws, and under harrows of iron, and under axes of iron, and cause them pass through the brick-kilne.’ But, I beseech you, will royalists say, that conquerors, who make themselves kings by their sword, and so make themselves fathers, heads, defenders, and feeders of the people, may use the most extreme tyranny in the world, such as David used against the children of Ammon, which he could not have done by the naked title of sword-conquest, if God had not laid a commandment of an higher nature on him to serve God’s enemies so?
I shall then say, if a conquering king be a lawful king, because a conqueror, then has God made such a lawful king both a father, because a king, and a tyrant, and cruel and lionhearted oppressor of those whom he has conquered; for God has given him royal power by this example (2 Sam. 12:30-31) to put these, to whom he is a father and defender by office, to torment, and also to be a torturer of them by office, by bringing their backs under such instruments of cruelty as ‘saws, and harrows of iron, and axes of iron.'”
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The Divine Right of Church Government… (1646), Appendix
pp. 64-5
“We are carefully to distinguish between a law of Nature, or a perpetual binding moral law, which stands for an eternal rule to us, except the Lawgiver Himself, by a supervenient positive law, which serves but for a time, do loose us from an obligation thereunto, and [it be] a positive temporary law.
God says in an express law of nature that obliges us perpetually, ‘The son shall not be put to death for the sins of the father’; no magistrate on earth can lawfully take away the life of the son for the sin of the father, for this eternally obliges.
Yet Saul was to destroy the sucking children of the Amalekites for the sins of their fathers, but he had a positive temporary command of God to warrant his fact, 1 Sam. 15:2-3, none can infer that we are from this law, which was a particular exception, from a catholic, perpetually obliging moral law, that magistrates are now to take away the lives of the sucking infants of Papists.”
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p. 79
“2. There be two necessities of things, one natural, and first in that regard; another religious, and in that regard secondary.
The former necessity does always stand, except God remove it by some posterior commandment. It’s necessary that Adam and Eve eat of all things that God created for eating. God (I grant) may remove this necessity in some, and command either Adam to fast for a time, or not to eat of the tree of Knowledge.
So say I, warning by Bells [signaling that divine service is starting soon, though Romanists previously used them unto superstition] has a physical necessity, the use of the temples [church-buildings] in worshipping has the like necessity, so have gold and silver a necessity, God only, either by a commandment or by an exigence of providence that stands to us (as in the case of a scandal), for a command can remove the physical necessity and inhibit Israel to use such and such gold as has been in use in the heathen idols, and may forbid to perform an act of obedience to an affirmative command in the case of scandal, as he may forbid Paul to take wages for preaching the Gospel, though Paul have some natural necessity of taking wages.
But the Church, without a higher warrant from God, has no power to restrain us in the necessary use that God has given us.”
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p. 86
“Yea to kill a man is physically indifferent, for that is physically, yea morally, without relation to any law indifferent, which is capable of lawfulness or unlawfulness, according as it shall be commanded of, or forbidden by God.
But for a man to kill his son, is of itself such, certain, if God command a judge to kill his son, it is lawful for the father to kill his son, if the Lord forbid Abraham to kill his son, it is unlawful for Abraham to kill his son.”
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On Disobedience to Positive, Human Laws
The Hungarian Confessio Catholica 1562
ed. Dennison, Reformed Confessions, vol. 2
pp. 526-7
“We approve those human traditions, which agree with the Law of nature and the Ten Commandments, are profitable for the governance of human life and the maintenance of discipline, and such as are the benign and lawful constitutions of the magistrates. For the Lord desires that believers be obedient to these (Rom. 13:1; 1 Tim. 2; 1 Peter 2-3; Dan. 2-4; Popes Calixtus and Urban, letter 2; Jer. 27).
…However, we will not approve any civil ordinances which conflict with the law of nature, the rights of the people, and divine traditions… and indeed, together with Scripture, we condemn… all such laws and unjust decrees as are contrary to the laws of nature and God (as it is said in Isaiah: ‘Woe unto them that decree a false decree,’ 10:1…
Therefore, we repudiate laws dealing with usury, extortion, and the oppression of subjects through onerous and grave injustices (by the force of which the property of subjects is taken away by every possible means) as a form of robbery and plunder. Such are abnormal and unlawful taxation and demands for tribute, such as the Turks and others like them make, who devour their subjects and whom the Lord threatens (Isa. 1,3,8,10; Amos 2,4; Wisdom 3; Mic. 7.”
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p. 546
What Do subjects Owe to Magistrates?
“However, if anything is commanded contrary to natural law or the glory and law of God, in this the magistrates are not to be obeyed, for God must be feared rather than men (Rom. 13; 1 Pet. 2; Lk. 3, 5, 20; Mt. 22; Ambrose, Chrysostom, Theophylact and Origen on these passages; Augustine, letter 50, to Boniface; Jerome, letter 6).”
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Samuel Rutherford
Divine Right of Church Government… (1646), ch. 2, pp. 216-9
“Answer: Though the violation of the general [moral] law hurts the conscience, it being against the Fifth Commandment; it follows not that the violation of every particular law, even that that is merely positive, hurts the conscience before God: For then the carrying of armor in the night [which is suspicious of violence and may be dangerous to a town], suppose no ruler on earth make a law there anent, should be a sin before God, which no wise-man can say.
2. The other reason is more important, and draws with it that school-question agitated by [civil] jurists also and [ecclesiastical] canonists, An ulla detur lex pure paenalis; ‘If there be a law purely penal,’ without sin in it: And if the law of rulers in things merely positive be merely penal and co-active, and not formally obliging [connected] to sin. But I Answer:
Rulers do justly punish the transgression of a positive law, not as particularly human and positive: But as:
1. It has connection with the moral reason of the law.
2. As the particular transgression is scandalous and against order, in which case the formal object of the just punishment inflicted by the ruler, is in very deed not the simple omission of the positive act of a particular human law, but the violation of the moral goodness annexed to it, and of the scandal given.
Now in this meaning, the transgression of the positive human law is not kindly [in its kind], per se, of itself punishable, but by accident, and so it binds the conscience by accident; and in this sense, great doctors, as Ambrose, Anselm, Theodoret, Chrysostom, Navarra, Felinus, Taraquel, say that human laws oblige the conscience. But the most learned of the [ecclesiastical] canonists aver that not to obey civil laws, laying aside the evil of scandal, is no mortal sin, and so does not involve the conscience in guiltiness before God.”
2. They object: ‘To resist the laws of the magistrate, is to resist himself; and to resist himself, is to resist the ordinance of God.’
Answer: To resist the laws-positive and particular in connection with the moral reason of the law, is to resist the ruler, true. But so the question is not concluded against us: for by accident in that sense, human laws bind the conscience; but to resist the particular laws, as particular laws, as particular positive laws, is not to resist the ruler:
A ruler as a ruler, does never command a thing merely indifferent as such, but as good, edificative, profitable, and except you resist the morality of the positive human law, you resist not the ruler; yea, nor yet is the law resisted.
3. The Jesuit Lod. Meratius objects: ‘Every true law obliges either to guiltiness, or to punishment, but the civil and canonic [ecclesiastic] laws are laws properly so called. But they do not ever oblige to punishment only. Therefore, they oblige [are necessarily connected] to sin.
Answer: It is denied that laws civil or canonical, as merely particularly positive, do oblige as laws, or that they are laws, they be only laws according to the morality in them, that can promove us to our last end, eternal felicity.
It is also false that the Jesuit says, “‘If thou wilt be saved, keep the Commandments,’ does command the keeping of all civil and canonic laws,” or that hence is concluded a law obliging the conscience, that is, human and positive, as if a Lent-fast, a pilgrimage, and not carrying armor in the night were commanded by Christ as necessary to life eternal.
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Answer: 1. By the law of nature, sins against the law of nature deserve eternal punishment, and that essentially, laying aside the positive will of God, to whom I grant it is free to inflict punishment, or not to inflict, and this agrees to all sin.
But to carry armor in the night, laying aside the case of scandal, and the morality thereof, that no murder follow thereupon, deserves neither temporal nor eternal punishment. And if this argument of the Jesuits hold good, no mortal sin shall oblige to eternal punishment, because God’s positive will is the nearest cause of actual punishment eternal in all sins.
2. God is not the author of a proper nomothetic [law-making] power in man, for that is the question.”
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But our argument is, he who has dominion and authority to make a law, has dominion and authority to inflict a punishment answerable to the transgression of that law: for it is one dominion and power to make the law, and to inflict the penalty of the law: Man cannot make the penalty of eternal wrath: Therefore, he cannot make a law obliging to eternal wrath.
…3. If any commit an act that hurts a whole community, and is forbidden by men in authority, he sins against the Law of God, though men had never forbidden that act: And we deny not but human laws agreeing with the Law of Nature, do oblige the conscience both to sin and eternal punishment, but then they are not human laws, but divine laws, and in that case two guiltinesses, Duo reatus, are committed, one against the Fifth Commandment, in doing what superiors according to God’s Word forbid, and there is another guiltiness against the matter itself, and a divine law, which also should stand as a sin before God, though the ruler had never forbidden it:
But if any carry armor in the night, being forbidden by the judge, for eschewing of night homicide, if no homicide follow at all, and the matter be not known, and so not scandalous, the carrier of armor is involved in no guiltiness before God.”
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The Divine Right of Church Government (London, 1646), Appendix, ‘An Introduction to the Doctrine of Scandal’, Question 3, p. 32
“But our [prelate] doctors will have the commandments-positive of men to stand [upon the Church of Scotland], and the commandments of God, which are expressly of the law of nature to fall before their Dagon, and to lose all obligatory power, whereas God’s own positive-law yields, and loses obligatory power, when God’s natural commandment of mercy comes in competition with it, as is clear as the noon-day, in David famishing, who eat[s] the showbread, which by a positive law, was not lawful to any save the priests only, to eat, yet must man’s law stand and God’s law of nature fall at the pleasure of these Doctors.”
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On How to Go About Disobedience to Superiors
Quote
1600’s
Samuel Rutherford
Ch. 2, Question 2, ‘Whether Human Laws Bind the Conscience or Not?’ in The Divine Right of Church Government… (1646), pp. 201-219
“2. Public peace in all the commandments of superiors, in so far as can be without sin, obliges the conscience, as Heb. 12:14, ‘Follow peace with all men and godliness;’ Ps. 34:14, ‘Seek peace and follow after it;’ Rom. 12:18.
3. Subjection to the censures of rulers by suffering patiently is an obligation lying upon all private persons, 1 Pet. 2:20, ‘But if when ye do well and suffer for it, ye take it patiently, this is acceptable to God;’ Rom. 13:2, ‘Whosoever therefore resisteth the power, resisteth the ordinance of God.’
4. Nothing in non-obeying unwarrantable commandments must be done that redounds to the discredit of the ruler or the hurting of his majesty and honor, 1 Pet. 2:17, ‘Honor the king;’ Eccl. 10:20, ‘Curse not the king: for even when we deny subjection or obedience-objective to that which they command, yet owe we obedience official, and all due respect and reverence to the person and eminent place of the ruler, as Acts 7:2, Steven calls them, Men, brethren and fathers, Acts. 7:51, and yet ‘stiffnecked resisters of the Holy Ghost.’”
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On Positive Laws of God
Articles
Palmer, Herbert & Daniel Cawdrey – Sabbathum Redivivum, or the Christian Sabbath Vindicated… Part 1 (1645)
ch. 1, ‘Of the Term of a Moral Law…’, pp. 12-16, ‘On Moral-Positive Laws’
ch. 2, ‘Rules to Know a Law to be Moral, though but Positive’
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Quotes
William Perkins
A Discourse of Conscience… (Cambridge, 1596), pp. 15-16
“2nd Caution. When God gives some particular commandment to his people, dispensing with some other commandment of the moral law: for that time it binds not. For all the 10 commandments must be conceived with this condition, Except God command otherwise.
Example 1. The Sixth Commandment is, ‘Thou shalt not kill’: but God gives a particular commandment to Abraham: ‘Abraham offer thy son Isaac in sacrifice to Me.’ And this latter commandment at that instant did bind Abraham: and he is therefore commended for his obedience to it.
II. And when God commanded the children of Israel to compass Jericoh seven days and therefore on the Sabbath, the Fourth Commandment prescribing the sanctifying of rest on the Sabbath for that instant and in that action did not bind conscience.”
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Samuel Rutherford
Lex Rex… (1646), Question 23, pp. 106-7
“4. That which is the garland and proper flower of the King of kings, as He is absolute above his creatures, and not tied to any law, without Himself that regulates his will, that must be given to no mortal man or king except we would communicate that which is God’s proper due to a sinful man, which must be idolatry.
But to do royal acts out of an absolute power above law and reason, is such a power as agrees to God, as is evident in positive laws and in acts of God’s mere pleasure, where we see no reason without the Almighty for the one side rather than for the other, as God’s forbidding the eating of the Tree of Knowledge makes the eating sin and contrary to reason; but there is no reason in the object; for if God should command eating of that tree, not to eat should also be sin.
So God’s choosing Peter to glory and his refusing Judas, is a good and a wise act, but not good or wise from the object of the act, but from the sole wise pleasure of God; because, if God had chosen Judas to glory and rejected Peter, that act had been no less a good and a wise act than the former. For when there is no law in the object but only God’s will, the act is good and wise, seeing infinite wisdom cannot be separated from the perfect will of God; but no act of a mortal king, having sole and only will, and neither law nor reason in it, can be a lawful, a wise, or a good act.”
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The Divine Right of Church Government... (1646)
pp. 19-20
“But there is nothing so small in either doctrinals or policy [of the moral platform of Church government in the Word] so as men may alter, omit and leave off these smallest positive things that God has commanded; for Christ says [that] paying of tithe of mint, ought not to be omitted…
We urge the immutability of Christ’s Laws, as well in the smallest as greatest things, though the commandments of Christ be greater or less in regard of the intrinsical matter… Yet they are both alike great, in regard of the authority of Christ the commander, Mt. 28:18-19. And it’s too great boldness to alter any commandment of Christ, for the smallness of the matter, for it lies upon our conscience, not because it is a greater or a lesser thing, and has degrees of obligatory necessity lying in it for the matter; but it ties us for the authority of the Lawgiver…”
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p. 648
“For what actions have no good, nor lawfulness, nor aptitude to edify in themselves, these the will of man can never make good, lawful and apt to edify, because only God, whose will is the prime rule of all goodness, can create moral goodness in actions:
Not to eat of the fruit of the Tree of Knowledge is only good because God has so appointed in his Law, and to eat of the fruit of that tree had been as lawful and just as not to eat, if God had commanded eating thereof, under promises and threatnings.”
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Christ Dying & Drawing Sinners to Himself… (1647), p. 140
“Assertion 4. A conditional and a submissive desire, though not agreeable to a positive law and commandment of God, is no sin, nor does the Law require a conformity in all our inclinations and the first motions of our desires to every command of God, though most contrary to nature and our natural and sinless inclinations:
1. If God command Abraham to kill his only begotten son and offer him in a sacrifice to God, which was a mere positive commandment; for it’s not a command of the law of nature (nor any other than positive) for the father to kill the son; if yet Abraham retain a natural inclination and love commanded also in the law of nature to save his son’s life and to desire that he may live, this desire and inclination, though contradictory to a positive command of God, is no sin; because the Fifth Command, grounded on the law of nature, does command it.
Nor did Gods precept (‘Abraham, kill now thy son, even Isaac thine only begotten son’) ever include this, ‘Abraham, root out of thine heart all desire and inclination-natural in a father to preserve the life of the child. So the positive command of the Father, that the Son of God should lay down his life for his sheep, did never root out of the sinless nature of the man-Christ a natural desire to preserve his own being and life, especially He desiring it with special reservation of the will of God commanding that He should die.”
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The Covenant of Life Opened... (1655)
pp. 70-71
“He that is under grace finds sweetness of delight in a positive law though the thing commanded be as hard to flesh and blood as to be crucified, Jn. 10:18, yet it obtains a sweetness of holiness from God’s will, Ps. 40:8, ‘I delight to do thy will, O God,’ (even to be made a curse and crucified) ‘thy Law is within my heart,’ and He would but ‘fulfill all righteousness,’ even that which seems to be the outside of the Gospel, to be sprinkled with water, Mt. 3:15, and this Christ would do as under the Covenant of Grace.’
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p. 30
“…for every sin against a positive law, to eat of the Tree of Knowledge, or for the Jews to eat swine’s flesh, before Christ abolished such laws, as well as sins against the Law of nature, are contrare to the glory of God”
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Influences of the Life of Grace… (London, 1659), pp. 110-111
“Sometime he [Satan] tempts to lawful liberties, to ear, setting the Law of nature in opposition to the divine positive-law, Gen. 3. ‘The tree is good for meat;’ then God and Nature ordained it for food. In all which, holy Sovereignty gives influences natural to the tempter; nor will He have us to question his Sovereignty.”
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Francis Turretin
Institutes, vol. 2, 11th Topic, 2nd Question, ‘The Nature of the Moral Law’, sections 6 & 23, pp. 8-9, 14
“VI. Besides the uncreated natural divine right (called primary) founded immediately upon the very nature and holiness of God (the contrary of which He could not will nor command without denying Himself), another is granted (created and secondary), founded on the nature of things (according to the constitution established by God and the mutual suitableness or fitness of things to each other).
On the hypothesis of the order instituted by God (according to which He willed such to be the nature of things), it is necessary. Still it cannot be regarded as of the same necessity with the first, nor do the duties flowing from it have an equal degree of obligation. For the former is immutably absolute; nor is there any case in which God can relax it because thus He would appear to deny his own nature, on which it is based. Hence He never could command or approve hatred of Himself, idolatry, perjury and falsehood.
But the latter (although containing the natural rule of rectitude, because it supposes a certain state of things) could in certain cases (the circumstances of things and persons being altered) be changed, but only by his authority who established it. For example, murder and stealing (forbidden in the sixth and eighth commandments) could become lawful [e.g. possibly Gen. 22 with Abraham being commanded of God to sacrifice Isaac], some circumstance being changed–for instance, a divine command or public authority being given.
In this respect, it can be referred to positive right; not indeed absolutely and simply such and merely free (which has no foundation except in the will of God alone), but relatively, inasmuch as (although based upon the order of things and created nature), it can still admit of a change in accordance with the wisdom of the legislator, who established that order.
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XXIII. The sixth commandment, about homicide, was not dispensed with when Abraham was ordered to kill his own son. The command was only exploratory, not absolute. Neither if he had killed him by God’s command would he have violated the law concerning homicide because he would have done it empowered by a public authority (to wit, the command of God).
However, the law does not condemn homicide of every kind. For the magistrate is bound to punish the guilty…”
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God’s Eternal Decrees are Positive
God’s eternal decrees are positive in that they do not flow necessarily out of his nature or essence. Rather, as He has chosen them from amidst other infinite alternatives, and could have chosen otherwise (see our page On Possibilities & Hypotheticals), as He had the ability and power to do so, so his decrees have been positively set forward by Him.
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Quotes
Samuel Rutherford
The Covenant of Life Opened… (Edinburgh, 1655), pp. 17-18
“God can serve Himself of nothing, yea, that there are not created, locusts, caterpillars more numerous than that all the fruits of the earth can be food to them, preach the glory of the Lord’s goodness to man, and what are never to be, no less than all things that have futurition [come into being], or shall come to pass either absolutely or conditionally, are under the positive decree of God, else we should not owe thanks to the Lord for many evils that never fall out, that the Lord turns away violent death, violence of men and wild beasts, and many possible mischiefs, contrair to Deut. 28:11-12; Lev. 26:6; Ps. 34:20; Ps. 91:5-8.
And all these beings or no-beings owe themselves to God to hold forth the glory of goodness, wisdom, mercy, justice, etc. suppone [suppose] there had never been sin: Far more now, who wants matter of meditation, or can write a book of all the pains, achings, convulsions, pests, diseases that the Lord decreed to hold off? so that every bone, joint, lith [limb], hair, member, should write a Psalm Book of praises, Ps. 35:10, ‘All my bones shall say, Lord, ‘Who is like unto thee?””
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Francis Turretin
Institutes, vol. 2, 11th Topic, 2nd Question, ‘The Nature of the Moral Law’, section 5, p. 8
“However, all those things of which it cannot be said that God was not by necessity of nature bound to the other part of the contradiction (or in which we know that God can make or has actually made some change in the obligation) belong to positive right. Such were the symbolical law given to Adam and the ceremonial laws of the Old Testament (which depended on the free will of God). Here also the permission of sin is usually referred.”
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That Unique, Positive Laws of God are not Obliging on Us
Quote
Samuel Rutherford
A Free Disputation… (1649), p. 299
“Though Saul’s destroying of the Amalekites in that cause was moral, in regard ‘they lay in wait for Israel, when they came out of Egypt,’ and so of perpetual obligation, yet the destroying of them, 1 Sam. 15, is temporary and obliges not us:
1. Because that generation were their sons, not those same persons that oppressed Israel when they came out of Egypt, and we may not punish the sons for the sins of their fathers with death; therefore God’s positive command to Saul, and the reason, ‘I remember what Amalek did’ (in Moses his time) ‘therefore kill them,’ does not oblige us, except we had the like command.
2. Because the slaying of man, woman, infant and suckling, ox and sheep, was temporary and cannot have a perpetually obligatory ground in the Law of nature or natural justice obliging us.
3. Where there is an injury done to God against the Law of nature and against our brethren in drawing them from serving the true God, and a punishment commanded by God to be inflicted once; that punishment, or the like in substance and nature, must ever be such as obliges us in the like cases; The learned professors in Leiden say, ‘They can see no reason but they must oblige under the New Testament.’
I confess when the fault is ceremonial, though the punishment be real, as the cutting off of an infant not circumcised [Gen. 17:14], and some punishments inflicted on the leper, it is not reason the Law should oblige us in the New Testament, either as touching the punishment or the degree.
Because these punishments for typical faults are ordained to teach rather than to be punishments, and the Magistrate by no light of nature could make laws against unbaptized infants.”
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All Mosaic Judicial Laws, as Judicial, are Positive
Article
ed. Fentiman, Travis – ‘Samuel Rutherford on the Judicial Laws of Moses: Excerpts Arranged Topically’ (RBO, 2016) See especially p. 4.
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Webpage
The General Equity of the Old Testament Civil Laws – ReformedBooksOnline
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On Permissive, Mosaic Laws of God
Order of Quotes
Calvin
Rutherford
Owen
Turretin
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1500’s
John Calvin
Commentary on Mal. 2:16
“We indeed know that repudiation [divorce], properly speaking, had never been allowed by God; for though it was not punished under the [Mosaic] Law, yet it was not permitted. It was the same as with a magistrate, who is constrained to bear many things which he does not approve; for we cannot so deal with mankind as to restrain all vices. It is indeed desirable, that no vice should be tolerated; but we must have a regard to what is possible. Hence Moses has specified no punishment, according to the heinousness of the crime, if one repudiated his wife; and yet it was never permitted.”
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1600’s
Samuel Rutherford
Lex Rex... (1644; Edinburgh: Ogle, 1843)
“Answer: 1. Show a law of nature that the father might enslave his children; by a divine positive law, presupposing sin, the father might do that; and yet I think that may be questioned, whether it was not a permission rather than a law, as was the bill of divorce; but a law of nature it was not;
2. The Popish Prelate [John Maxwell] can see no law but the law of nature here; but it is because he is blind or will not see. His reason is, It was not by mutual and voluntary contract of children and fathers, therefore it was by the law of nature; so he that cursed his father was to die by God’s law. This law was not made by mutual consent betwixt the father and the son, therefore it was a law of nature: the Prelate will see no better. Nature will teach a man to enslave himself to redeem himself from death, but that it is a dictate of nature that a man should enslave his son, I conceive not.”
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“What compelled people may do to redeem their lives, with loss of liberty, is nothing to the point… and that they may sell the liberty of their posterity, not yet born, is utterly denied as unlawful; yea, a violentated father to me is a father, and not a father, and the posterity may vindicate their own liberty given away unjustly before they were born, Qua omne regnum vi partum potest vi dissolvi.”
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p. 76 lt col
“As for the law of divorce, it was indeed a permissive law, whereby the husband might give the wife a bill of divorce and be free of punishment before men, but not free of sin and guiltiness before God, for it was contrary to God’s institution of marriage at the beginning, as Christ says, and the prophet says (Mal. 2) that the Lord hates putting away;”
[The Romanists used the Mosaic law of divorce to defend openly permitting whorehouses in Romanist countries, so that persons, in indulging these, might avoid greater sins. But see Rutherford’s arguments against this immediately above on p. 76.]
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“…a permissive law of God… such as a law of a bill of divorcement… The law of a bill of divorcement is a mere positive law, permitted in a particular exigent, when a husband, out of levity of heart and affection, cannot love his wife; therefore God by a law permitted him out of indulgence to put her away, that both might have a seed (the want [lack] whereof, because of the blessed Seed to be born of woman, was a reproach in Israel [in the Old Testament]), and though this was an affliction to some particular women, yet the intent of the law and the soul thereof was a public benefit to the commonwealth of Israel, of which sort of laws I judge the hard usage permitted by God to his people — in the master toward the servant — and the people of God toward the stranger, of whom they might exact usury — though not toward their brethren.”
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“Nor can we think that the hardness of one prince’s heart can be a ground for God to make [such] a [tyrannical civil] law [in Rutherford’s day] so destructive to his church and all mankind; such a permissive law, being [claimed to be] a positive law of God [by Erastian defenders of tyrants], must have a word of Christ for it, else we are not to receive it…
…I ask, how men can annul any divine law of God, though but a permissive law…
…the object of a permissive law is sin…”
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John Owen
pp. 567-8 of A Dissertation on Divine Justice... ch. 9 in Works, vol. 10
“But this right [of the civil government], as far as [it] pertains to its exercise in respect of the infliction of punishment, either tends to the good of the whole republic, as in ordinary cases, or, as in some extraordinary cases, gives place to its hurt; for it is possible that even the exaction of punishment, in a certain condition of a state, may be hurtful.
In such a situation of things, the ruler or magistrate has a power not to use his right of government in respect of particular crimes; or rather, he ought to use it in such a manner as is the most likely to attain the end; for he is bound to regard principally the good of the whole and the safety of the people ought to be his supreme law. But he who affirms that in ordinary cases, a magistrate may renounce his right, when that renunciation cannot but turn out to the hurt of the public good, is a stranger to all right.”
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Francis Turretin
Institutes, vol. 2, 11th Topic, 2nd Question, ‘The Nature of the Moral Law’, section 26 & 29, pp. 15-16
“Hence it [polygamy] might be lawful in the court of earth (so as to obtain immunity from civil and ecclesiastical punishments among men), but not in the court of heaven before God.
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XXIX. As to divorce, God neither simply commanded nor permitted it, but only wished to restrain by fixed laws the facility of divorces which prevailed among the Jews against the natural law of marriage, so as to regulate the mode of an unlawful thing, not however to make it lawful. Hence Christ says that God ‘permitted’ or ‘tolerated’ it ‘because of the hardness of heart of the Jews’ (Mt. 19:8).”
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The Death Penalty for Murder (Gen. 9) is Positive
Quote
1600’s
Samuel Rutherford
Lex Rex (1644), Question 2, pp. 2-3
“And by the same reason I may, by an antecedent will, agree to a magistrate and a law, that I may be ruled in a politic society, and by a consequent will only, yea, and conditionally only, agree to the penalty and punishment of the law; and it is most true no man, by the instinct of nature, gives consent to penal laws as penal, for nature does not teach a man, nor incline his spirit to yield that his life shall be taken away by the sword, and his blood shed, except on this remote ground: a man has a disposition that a vein be cut by the physician, or a member of his body cut off, rather than the whole body and life perish by some contagious disease; but here reason in cold blood, not a natural disposition, is the nearest prevalent cause and disposer of the business.
“When, therefore, a community, by the instinct and guidance of nature, incline to government, and to defend themselves from violence, they do not, by that instinct, formally agree to government by magistrates; and when a natural conscience gives a deliberate consent to good laws, as to this, “Whoso sheddeth man’s blood, by man shall his blood be shed,” Gen. 9:6, he does tacitly consent that his own blood shall be shed; but this he consents unto consequently, tacitly, and conditionally, — if he shall do violence to the life of his brother: yet so as this consent proceeds not from a disposition every way purely natural.”
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Articles
ed. Fentiman, Travis – pp. 8-9 of ‘Samuel Rutherford on the Judicial Laws of Moses: Excerpts Arranged Topically’ (RBO, 2016)
Rutherford, Samuel – Lex Rex (1644)
Question 13, pp. 50-51
Question 31, ‘Whether or No Self-Defense Against Any Unjust Violence Offered to the Life, be Warranted by God’s Law, and the Law of Nature and Nations?’, pp. 159-166
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Some Aspects of the 10 Commandments are Positive
Quote
1600’s
Samuel Rutherford
The Covenant of Life Opened... (1655), Ch. 26, ‘Of the property of the Covenant of Grace, the perpetuity thereof’, p. 214
“Answer: The Law and Covenant of Works is a rule of everlasting righteousness, and so may be called an everlasting righteousness containing precepts of the Law of nature, intrinsically good, such as to know love, fear, trust in him as the only true God: and in this sense it is an eternal Covenant.
But 1., it is not eternal in the positives of the Second, and Fourth, and Fifth Commands, the way of worship, the means, as ceremonies, Sabbath, magistracy, and such like, which are not to continue in the Life to Come…”
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Related Pages
On How Positive Human Laws Bind the Conscience & How They Do Not
On the Ordinances, Order & Policy of the Church
The Right of Continued Protest unto the Truth
On the General Equity of the Old Testament Civil Laws
On Things Indifferent (Adiaphora)
On the Relations Between the 1st & 2nd Tables of the Law
The Authority of Fathers in Giving Away their Daughters in Marriage