On Positive Laws & Ordinances, & the Law of Nations

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Subsections

On How Positive Human Laws Bind the Conscience & How They Do Not

On Church Ordinances

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Order of Contents

Articles
Non-Reformed Books
On the Difference Between Natural & Positive Laws
On Positive Laws of God
.       God’s Decrees are Positive
.       On Permissive, Mosaic Laws of God
.       That Unique, Positive Laws of God are not Obliging on Us
On the Relation of Natural to Positive Laws
Civil & Church Governments are by Positive Law, but not Family
All Mosaic Judicial Laws are Positive
.      The Death Penalty for Murder (Gen. 9) is Positive
Natural Law overrules Positive Law
On Disobedience to Positive, Human Laws
On How to Go About Disobedience to Superiors
Latin

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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

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)  Buy  This is online in Latin here.

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1600’s

Palmer, Herbert & Daniel Cawdrey –

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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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2000’s

Barth, Paul – Lex Propria – Proper Law’  2016  19 paragraphs

In addition to a very helpful article, Barth gives quotes from Baillie, Althusius, Gillespie, Brown of Haddington & Perkins.

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…”

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Non-Reformed Books

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.

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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 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

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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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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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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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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On Permissive, Mosaic Laws of God

Samuel Rutherford

Lex Rex…  (1644)

p. 76

“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;”

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p. 196

“…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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pp. 196-7

“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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That Unique, Positive Laws of God are not Obliging on Us

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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On the Relation of Natural to Positive Laws

Quote

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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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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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

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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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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The Death Penalty for Murder (Gen. 9) is Positive

Quote

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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Natural Law Over-Rules Positive Law

See also Relations Between the Tables of the Law

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6 Scottish Covenanters  1606

Ministers John Forbes, John Welch, Andrew Duncan, Robert Dury, John Sharp, Alexander Strachan ministers

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…

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. 2, p. 245

“2. The wife is not to separate, a toro & mensa [natural duties], 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)

p. 66

“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 [note also Mt. 15:5-6].  The vessels of silver, dedicated to the church, may be taken and bestowed on wounded soldiers.”

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p. 96

“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

“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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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.

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.”

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

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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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”

Ch. 5, ‘What is the Law of the Nations, How Many it is & Whether it is Rightly Constituted as a Species of the Law of Nature?’

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)

Hottinger

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.

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.

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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) 

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.

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