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The Civil Magistrate: Punishment and Prevention

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Paul J. Barth

One of the most basic presuppositions of those who deny Proper Law is the notion that the civil magistrate exists solely to punish crime after it is committed, he does not have the legislative power to prevent crime beforehand other than simply by the fear of punishment. This is a fundamentally flawed assumption that does not line up with Scripture or the nature of civil government. In this post we will see that each moral law has both positive duties and negative constraints, and how the civil magistrate ought to prevent crime beforehand as well as punish it afterwards. Additionally, we will examine the positive duties of the magistrate with regard to religion, specific examples of preventative case laws, the general equity of which can be applied to modern contexts, as well as the importance of discretion and prudence in the maintenance of the commonwealth and in judging particular circumstances.

 

Note: This post assumes the reader has read part 1 and part 2 of our series on Proper Law, but an attempt has been made to sufficiently explain things for the reader who hasn't read them yet. Historically, Reformed Theology has understood that Romans 13 does not only prescribe that the civil magistrate ought to punish crime, but that it also entails positive duties of encouragement to promote the good. The Belgic Confession states that God has appointed magistrates “to the end that the dissoluteness of men might be restrained, and all things carried on among them with good order and decency” (BC 36). Magistrates bear the sword to punish the evil-doer as well as “for the defense and encouragement of them that are good” (WCF 23:1; cf. BC 36; Rom. 13:3; 1 Peter 2:14). The Reformed Presbyterian Catechism (1853) expounds on how the civil government is the moral ordinance of God and likewise sees the positive aspect of the magistrate in Romans 13:3, “The magistrate is the encourager of practical morality and piety (Rom. 13:3).” It goes on to explain how the civil government is not just an ordinance of God, in a sense it is also an ordinance of man (1 Peter 2:13):

[Civil government] is in one view the ordinance of man, a human creation (1 Peter 2:13). Forms of magistracy, or the laws for the regulation of the commonwealth, are the ordinance of man. It is lawful for men to model their constitutions of government in such a manner as may appear most suitable to them, provided such constitutions, in their principles and distribution of power, be in nothing contrary to the divine law (Deut. 17:14-17, 20).

Excerpt from Section IV.

The Heidelberg Catechism explains, among other things, that it is a sin against the 6th commandment to willfully expose oneself to danger and likewise, the duty of the magistrate as a superior is to be “armed with the sword to prevent murder,” not just to punish it afterwards (HC 105). The Second Helvetic Confession likewise views the positive duties of the magistrate not limited to punishment, but also prevention and protection especially of the weak and lowly of society (SHC 30:3).

The specific way in which the civil magistrate is to endeavour to advance the glory of God is through the promotion of the good of the community (Rom. 13:4) in temporal concerns, including education, morals, physical prosperity, the protection of life and property, and the preservation of order.

A.A. Hodge,
A Commentary on The Westminster Confession of Faith
, pg. 144.

John Calvin explains the purpose of civil government thus:

It is designed as long as we live in this world to cherish and support the external worship of God, to preserve the pure doctrine of religion, to defend the constitution of the Church, to regulate our lives in a manner requisite for the society of man, to form our manners to civil justice, to promote our concord with each other, and to establish general peace and tranquility. (
Institutes of the Christian Religion
, 4.20.2)

In short, that a public form of religion may exist among Christians, and humanity among men. (Ibid., 4.20.3)

Thus all [the pagan authors] have confessed that no polity can be successfully established unless piety be its first care, and that those laws are absurd which disregard the rights of God, and consult only for men. (Ibid., 4.20.9)

[h=4]Positive and Negative Aspects of the Law[/h] Every moral command contains both inherent positive duties and negative transgressions against it. These positive and negative aspects of the ten commandments imply one another. For instance, where it is negatively stated that we must not steal (Ex. 20:15), it is implied that we must therefore work hard, be good stewards, and respect private property, “Let him that stole steal no more: but rather let him labour, working with his hands the thing which is good, that he may have to give to him that needeth” (Eph. 4:28).

For the right understanding of the ten commandments, these rules are to be observed:

. . .

Where a duty is commanded, the contrary sin is forbidden; and, where a sin is forbidden the contrary duty is commanded: so, where a promise is annexed, the contrary threatening is included; and, where a threatening is annexed, the contrary promise is included.

[isa. 58:13; Deut. 6:13; Matt. 4:9-10; Matt. 15:4-6; Matt. 5:21-24; Eph. 4:28; Ex. 20:12; Prov. 30:17; Jer. 18:7-8; Ex. 20:7; Ps. 15:1, 4-5; Ps. 24:4-5]

Westminster Larger Catechism Q&A 99, Rule 4.

While only two of the ten commandments are written in positive form (the fourth and the fifth), the meaning of each of the ten is equally negative and positive. Christ’s summary of the moral law is stated positively, “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy strength, and with all thy mind; and thy neighbour as thyself” (Luke 10:27; cf. Deut. 6:5 and Lev. 19:34; Rom. 13:9-10). Thus the duties of the commandments as well as the sins against the commandments should be given equal consideration.

The ten commandments oblige everyone not just as private individuals, but also “according to our places and callings” (SL&C). Therefore, fathers, mothers, children, business owners, servants, pastors, civil magistrates, etc. are responsible for their obedience to the positive and negative aspects of the moral law. “In each case the exercise of authority must be limited by the measure of authority granted by God and the nature of the relation to the persons involved” (J.G. Vos, Commentary on the WLC, pg. 254).

VII. That, what is forbidden or commanded to ourselves, we are bound, according to our places, to endeavor that it may be avoided or performed by others, according to the duty of their places.

Not to endeavour to prevent sin in others, is, in effect, to commit it ourselves. Thus Eli contracted the guilt of his sons crimes, by not endeavouring to prevent them. And persons are said to
hate their brethren in their hearts who do not rebuke them, but suffer sin upon them
, Lev. xix. 17. And Abraham is commended in that he
should command his household after him, that they should keep the way of the Lord
, Gen. xviii. 19. From hence it follows, that it is a duty for parents to instruct their children in the ways of God, Deut. vi. 6, 7.

VIII. That in what is commanded to others, we are bound, according to our places and callings, to be helpful to them; and to take heed of partaking with others in what is forbidden them.

That we are to be helpful to others, in that which is their duty, appears, from our obligation to endeavour that God may be glorified. Therefore we are, to our utmost, to promote their faith and joy in Christ. Thus the apostle says,
We are helpers of your joy
, 2 Cor. i. 24. And, on the other hand, we ought to take care that we do not partake with others in their sin. Thus the Psalmist says,
When thou sawest a thief then thou consentedst with him., and hast been partaker with adulterers
, Psal. l. 18.

Thomas Ridgley,
A Body of Divinity
(1731), vol. 3, WLC 99.

The concept of punishing crime contains within it the concept of preventing it. Every sin/crime has both positive and negative aspects, or in the language of the Westminster Standards, sins against the commandment and duties of the commandment. It is a sin to practice idolatry and to blaspheme, and therefore it is a duty to prevent these things according to one’s place and calling. An individual as a private person cannot destroy a crucifix in a church, for instance, but the civil magistrate, according to his place and calling, can and should remove it (Ex. 32:20; 2 Kings 18:4) in addition to punishing the idolaters afterwards (Ex. 32:27-28). However, the civil magistrate is not only to punish crime afterwards, he is to take measures to prevent it beforehand as well.

6. It is true that civil government cannot reach the heart. It regulates the life. Yet it is ordained of God not only to punish overt acts in violation of any of the precepts, but to prevent crime by precautionary regulations, and a parental surveillance. As an illustration, it is the duty of civil government for the preservation of chastity, secured by the 7th commandment, to suppress the houses of temptation and to protect society against the wiles and obscenity of “
the strange women, whose house is the way to hell;
” and on the other hand to protect woman from the lust of licentious and debased men, who prowl around the loveliest, that they may seize them as their prey.

7. Thus with regard to every other precept of the Decalogue, civil government is its guardian, and is bound to apply it equally to all the subject, of its sceptre, not only to punish the transgressor, but to enforce its observance by such regulations as will bring the precept to bear upon the minds and consciences and lives of all under its jurisdiction.

Reformed Presbyterian Catechism, Section VII.

[h=4]Kiss the Son, O Ye Kings of the Earth[/h] With regard to the Church, magistrates are not simply reactive, they are also to proactively “protect the sacred ministry,” promote and countenance the true religion, preserve unity and peace, and prevent crimes against the first table (BC 36; WCF 23; WLC 191) in addition to punishing them should they occur. Additionally, “magistrates may lawfully call a synod of ministers and other fit persons to consult and advise with about matters of religion” (WCF 31:2; 2 Chr. 19:8-11; 2 Chr. 29-30). The civil government is to solemnly make a covenant with God (Is. 19:21; Jer. 50:5) to be as a nursing parent unto the Church (Is. 49:23; 60:16), to “serve the Lord with fear” and to “kiss the Son” lest He “dash them to pieces like a potter’s vessel” (Ps. 2; Is. 60:12). The civil government cannot force people to convert, but ought to expect outward obedience to the moral law, including the positive duties of the first table, such as honoring the Sabbath.

What is the civil Magistrate to do in God’s matters and for the souls of the

subjects?

1. He should pray for them, that God would make their hearts obedient

unto him.

2. He should see that God be honoured in his dominions. That abuses in Religion be reformed, and the truth promoted and maintained, after the example of David, Solomon, Hezekiah, Josiah, and other good kings (2 Chron. 14:3-4&15; 12-15; 17:6-9).

3. He should plant the sincere preaching of the Word among his subjects; that so they may be more obedient unto him and take care that the good things already taught and established may be done as God hath appointed. He is not to make new laws of his own for Religion, but to see those ordinances of Religion which are grounded upon the Word of God duly established and practiced. That so God may be truly served and glorified, and the Churches within his Realms, and under his government, may under him lead
a quiet and peaceable life, in all godliness and honesty
(2 Tim. 2:2). For he who neglecteth this duty to God, shall never perform his duty to men; how politick soever he seem to be.

James Ussher,
A Body of Divinity
, pg. 238.

William Symington emphasizes the active role that the magistrate must play with regard to the Church:

The prophecy [is. 49:23] refers to New Testament times, when the Gentiles are to be gathered unto the Redeemer. A prominent feature of these times shall be the subserviency of civil rulers to the church, which surely supposes their subjection to Christ her Head. “
Kings shall be thy nursing-fathers
” is a similitude which imports the most tender care, the most endearing solicitude; not mere protection, but active and unwearied nourishment and support. If, according to the opinions of some, the best thing the state can do is to let her alone, to leave her to herself, to take no interest in her concerns, it is difficult to see how this view can be reconciled with the figure of a nurse, the duties of whose office would certainly be ill discharged by such a treatment of her feeble charge.

William Symington,
Messiah the Prince
, pgs. 130-131.

[h=4]Preventative Case Laws[/h] The case laws were not meant to be an exhaustive list of statutes, they were applications of the law to specific circumstances; every possible scenario or enforcement is not explicitly listed, this is why Proper Law is crucial. Scripture doesn’t designate specific civil laws for any other people than ancient Israel. Civil magistrates are bound to the moral law and guided by all of Scripture to enact just and wise laws as their circumstances require (cf. The Judicial Law: General Equity vs. Particular Equity). Some case laws were preventative and proactive rather than only reactive and punitive, and some case laws did not prescribe a punishment, but left the punishment up to the prudence of the judge depending on the specific circumstances.

When thou buildest a new house, then thou shalt make a battlement for thy roof, that thou bring not blood upon thine house, if any man fall from thence” (Deut. 22:8). This application of the moral law is rooted in the duties of the 6th commandment to protect human life by taking care to prevent people from death or serious injury. In our spheres of authority we are to preserve life by “avoiding all occasions, temptations, and practices, which tend to the unjust taking away the life of any” (WLC 135), which would include preventing unnecessarily dangerous situations. Thus, in our modern context magistrates should exercise Proper Law and apply this principle to “the nature, utility, condition, and other special circumstances of his country” (Johannes Althusius, Politica, ch. 21). For instance, requiring railings on highways which run along a cliff-side, fences around pools and dangerous construction sites, balcony railings, etc. would be prudent applications of this principle. Someone should not have to die due to negligence for the magistrate to get involved. Even if a civil government did not have building inspectors per se, there would be nothing wrong with two or three witnesses reporting a dangerous feature to the magistrate who then forces that property owner to comply with the law.

Another example is the case of a man, who neglected to contain his goring animal, being liable to the death penalty, but only if he had previous knowledge that the animal was prone to gore. “But if the ox were wont to push with his horn in time past, and it hath been testified to his owner, and he hath not kept him in, but that he hath killed a man or a woman; the ox shall be stoned, and his owner also shall be put to death” (Ex. 21:29). Notice also that the owner was told that his animal is dangerous and he was expected to keep it locked up so that it cannot hurt anyone. The owner is not punished unless the animal does harm, but we cannot ignore the fact that the magistrate has every right to force the man to lock his animal up (or prevent drunks from driving, people from indiscriminately firing guns, or racing by a school at 100 mph, etc.) in order to prevent a tragedy. This case illustrates the absurdity of libertarian social thought. Can one seriously accept a magistrate who stands idly by and then merely punishes the criminal after the fact when he could have taken steps to prevent the death of innocent persons? It blissfully ignores the sinfulness and susceptible stupidity of men (cf. Althusius’ two reasons for Proper Law).

This commandment [6th] requires us to protect and defend our neighbor; for seeing that the law commands us not only to shun and avoid sin of every description, but also to practice that which is opposite thereto, it is evident that God does not only here forbid us to injure the life and safety of any one, but commands us at the same time, as far as it is in our power, to cherish and defend our neighbor.

Zacharias Ursinus,
Commentary on the Heidelberg Catechism
, pg. 1032.

There are many more examples of preventative and proactive enforcement of the law in Scripture, but we will just mention a few more. Nehemiah closed Jerusalem’s gates and posted his servants there to prevent would-be Sabbath breakers from entering the city and breaking the Sabbath and then he put the Levites in charge to “keep the gates” in order to prevent such crimes in the future (Neh. 13:19-22). Animals were protected from cruelty, and society from depletion of a food source (Deut. 22:6-7; cf. Deut. 25:4). In addition to the spiritual principle of refraining from unequal yoking (eg. in marriage), Deut. 22:10 has also been interpreted as preventing the injury and abuse of animals (cf. Jamieson, Fausset, Brown). Cities of refuge (Num. 35:25-28) prevented private vengeance. And so on.

Could it be that these judicial laws without prescribed punishments were simply suggestions and that the magistrate had no way to enforce them? Not without destroying the entire purpose of law, as R.J. Rushdoony correctly observed,

Law is applied power, although it is more than power. Those who object to coercion are really objecting to law…because you cannot have law without coercion.

Law as Power and Discrimination

[h=4]Judicial Prudence[/h] Lesser crimes are at the discretion of magistrates as to what methods are best suited to remediate the criminal and promote the good of the commonwealth. For example, flogging is given as an option for punishment but is left up to the prudence of the magistrate and not prescribed for any specific crime (Deut. 25:1-3). Punishments cannot be arbitrary, the guiding principle is always the lex talionis, that the punishment should meet the crime (Deut. 19:21). Therefore judges and magistrates must be shrewd in understanding the impact of specific crimes in their specific contexts in order to make wise judgments and sentences according to the light of nature.

Prostitution was illegal in the state of Israel but the case laws do not prescribe a punishment (Lev. 19:29; Deut. 23:17). Obviously we know what the punishment would be if it was adulterous, for example, but in other cases it would be left to the prudence of the judge or magistrate. Yet, even regarding male cult prostitutes (guilty of idolatry and sodomy) Asa is commended by God for exiling them rather than executing them (1 Kings 15:12). Oddly enough, even Rushdoony observed that prostitution should be illegal:

Not only were the Canaanite prostitutes to be eliminated, but none of Hebrew origin were to exist. Punishment was left up to the authorities, but the law clearly forbad the existence of Hebrew prostitutes or sodomites (homosexual male prostitutes).

R.J. Rushdoony,
Institutes of Biblical Law
, vol. 1, pgs. 394-395.

Removing a neighbor’s landmark is a way of stealing land, but there is no prescribed punishment (Deut. 19:14; 27:17; Prov. 23:10); judges ought to investigate these issues and use discernment in resolving them.

Attempts of criminal activity can be stopped and punished (e.g. attempted murder). In Scripture, attempted capital crimes are still punished capitally even though they were unsuccessfully carried out (Deut. 13:6-9; 19:16-21). And logically it makes sense, a criminal’s incompetence doesn’t change his guilt as long as the act was attempted and his mind was intentional (mens rea). Additionally, when we consider Exodus 22:2, Num. 35:25-28, Esther 2:21-23, Esther 7:3-10, among others, we can conclude that attempted and solicited crimes ought to be punished (see this article from Theonomy Resources).

Proper Law is not arbitrary power, it must be based on Natural Law (the moral law summarized by the Ten Commandments), “whatever interpretation swerveth either from fundamental laws of policy, or from the law of nature, and the law of nations, and especially from the safety of the public, is to be rejected as a perverting of the law” (Rutherford, Lex Rex, pg. 137). Proper Laws can only be exercised “so farre forth as they are agreeable to God’s word, serve for the common good, stand with good order, and hinder not the liberty of conscience” and “tend to maintain the peaceable estate and common good of men” (Perkins, A Discourse of Conscience, pg. 64).

In conclusion, we see that throughout history Reformed theology has seen both positive duties and negative constraints in the Law and that the civil magistrate is not to simply punish crime and disorder afterwards, but is to prevent it beforehand as well. In particular we saw the positive duties of the magistrate with regard to religion, specific examples of preventative case laws, the general equity of which can be applied to modern contexts, as well as the importance of discretion and prudence in the maintenance of the commonwealth and in judging particular circumstances.

 

 

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