As the previous chapter noted, the Hebrew prophets spoke both about future things and about justice. These roles merged in the prophecies of a coming Messiah who would inaugurate a reign of justice. Isaiah said:

Here is my servant, whom I uphold,
my chosen one in whom I delight;
I will put my Spirit on him
and he will bring justice to the nations . . . .
In faithfulness he will bring forth justice;
he will not falter or be discouraged
till he establishes justice on earth.
In his law [Israel will put itsLiterally, “in which the     Islands will put their hope.”  In the view of many scholars, “islands” here would have been understood to include the coastal regions, including Israel.] hope. (Is 42:1,3-4)Scripture quotations in this chapter are from NIV unless otherwise noted.

The Gospel writer Matthew identified Jesus as the Messiah of this prophesy (Mt 12:18-21).Our discussion of Jesus and the law draws most heavily from the Gospel of Matthew, apparently writing primarily to a Jewish audience, gives the most attention to the Old Testament in general, and to the Mosaic law in particular.

Though Matthew identified Jesus as Isaiah’s champion of justice, the Gospel of John contrasted Jesus’ gifts to humankind with law: “the law indeed was given through Moses; grace and truth came through Jesus Christ” (Jn 1:17 NRSV).  In this chapter, we will explore the ambiguous nature of Jesus’ relationship to law suggested in these and other passages.

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01.  Jesus’ Life and Encounters with Law and Legal Authorities

During Jesus’ life, Rome ruled Palestine, but it gave some authority to local Jewish leaders.  Jesus encountered both Roman and Jewish legal officials.  Most of these encounters were not pleasant.

The location of Jesus’ birth was determined by Roman law.Augustine said, “An unjust law is not law at all (Free Will, 1.1.5). Though we have sympathies with this notion, we will generally use the term law as it is commonly used today in the West, to refer merely to the officially implemented commands or decisions of those in authority. Shortly before his birth, Jesus’ earthly father, Joseph, and his mother, Mary, traveled from their home in Palestine to Bethlehem because “Caesar Augustus issued a decree that a census should be taken of the entire Roman world.  . . . And everyone went to their own town to register” (Lk 2:1, 3).  There was no housing available in Bethlehem, so Jesus was born in a stable.  Shortly after Jesus’ birth, the local king, Herod heard a rumor that “the king of the Jews” had been born in Bethlehem, and Herod ordered the murder of all the young male children, in hopes that he would kill the would-be usurper.  But an angel warned Jesus’ parents and they escaped (Mt 2:1-3, 13, 16).  We know little about Jesus’ childhood, other than that by age twelve he was already conversing at a sophisticated level with Jewish rabbis (Lk 2:42, 46-47).

At age thirty, Jesus became an itinerant preacher, teacher, and rabbi, traveling about Palestine, healing people, and gathering disciples.  He issued a starkly simple, but audacious, call: “Follow me” (Jn 1:43).  People were struck by a couple of things about Jesus.  He “taught as one who had authority, and not as their teachers of the law” (Mt 7:29; Mk 1:22) and yet he ate and drank with sinners (Mt 9:11; Lk 15:2).  Jesus was often condemned by the Jewish law teachers and the Pharisees (a strict, law-abiding Jewish group) for his violations of the then-current interpretations of Jewish law.

Much of Jesus’ teaching addressed the Jewish law.  John P. Meier notes that Jesus “[thought] long and hard about the Mosaic Law and [came] up with some startling and at times unprecedented pronouncements about it.”John P. Meier, Law and Love, vol. 4 of A Marginal Jew: Rethinking the Historical Jesus (New York, Doubleday, 2009), p. 527.  For example, in Mark 12:29-31, Jesus quoted Deuteronomy 6:4-5 and Leviticus 19:18 and argues that their commands to love God and neighbor are the first and second greatest commandments.  Here, he employs an unusual, if not unique at the time, hermeneutical technique, later adopted by Jewish rabbis and called gězērâ šāwâ.  (ibid.) This technique allowed a rabbi to use commandments from different books of the Mosaic Law for mutual interpretation if both contained the same phrase.  The phrase “and you shall love” appears in these passages (two of only four times that it is used in the Jewish Scriptures).  In doing so “Jesus shows a remarkable knowledge of the Hebrew text of the Mosaic Torah.”  (ibid., p. 493).   “Anyone can declare himself a charismatic prophet.  Getting the gězērâ šāwâ right requires study.”  (ibid., p. 575).

Meier and other critical scholars reject the reliability of many of the reports of the Gospel writers.  He says, for example, “we find in the Gospels not simply Jesus’ interpretation of the Law but, first of all, the four evangelists’ reinterpretation of Jesus’ interpretation of the Law.”  (ibid., 41).  Meier and other critical scholars are likely to see much of our essay as a comment on the early church’s views of law, rather than on Jesus’ views.  In our view, Meier unjustifiably limits what one can know about the historical Jesus.  There are many reasons to trust the reports of the Gospel writers.  Most of the Gospels were written within forty years of Jesus’ death by people who were either his disciples or who carefully interviewed eyewitnesses (see Luke 1:2).  In addition, as Meier himself notes, Jesus taught that “one should restrict oneself to simple, direct, and always honest speech.” (ibid., p. 198).  For Jesus’ followers, all statements rose to the level of oaths.  It is difficult to imagine that, with this as one of Jesus’ central moral teachings, his followers, for their own purposes, would intentionally put words into Jesus’ mouth.  They would be likely. But Jesus was more than a thoughtful rabbi who merely commented on the law.William R. G. Loader, Jesus’ Attitude Towards the Law: A Study of the Gospels (Grand Rapids: Eerdmans, 2002), p. 267 On occasion, he contrasted his teaching with that of the Mosaic Law and its then-current interpretation with the bold phrase, “But I tell you. . .”  (see, e.g., Mt 5: 22, 28, 32, 34, 39, 44, addressing murder, divorce, oaths, retributive justice and treatment of enemies). Jesus did not merely comment on and draw insight from the law, he announced its true meaning.

Many Jews in Jesus’ day hoped for a military and political Messiah who would free them from the rule of the Romans.  Jesus rejected that role.  Nevertheless, at the instigation of the leading Jewish legal authorities (who did not have the authority to impose the death penalty), the Roman authorities crucified Jesus.  To the Jews, Jesus’ crime was that he claimed to be God.  They reported to the Romans that he was guilty of sedition, that he claimed to be “king of the Jews” (Mt 27:11).

Following Jesus’ crucifixion, his followers dispersed in fear.  But they soon returned to Jerusalem and preached that Jesus had risen from the dead. They worshiped him as Immanuel (“God with us,” Mt 1:23), Messiah (the savior who came to free humans from our sins and give us a meaningful life, Mt 16:16), and Lord (1 Cor 12:3).

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02.  Justice and the Messiah

As noted above, Matthew identified Jesus as the Messiah who Isaiah had said would “bring forth justice.”  In his first reported sermon, Jesus, also quoting Isaiah, identified himself as the one anointed “to preach good news to the poor,” “to proclaim release of the captives,” “to let the oppressed go free,” to proclaim the year of the Lord’s favor” (Lk 4:17-21 NRSV, quoting Is 61:1-2).  On another occasion, Jesus exclaimed, “Will not God bring about justice for his chosen ones, who cry out to him day and night? Will he keep putting them off? I tell you, he will see that they get justice, and quickly” (Lk 18:7-8)

As Nicholas Wolterstorff notes, justice may have been an even more important theme of Jesus’ teaching than is generally realized. Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton, NJ: Princeton University Press, 2008), pp.111-12. A Greek word in Jesus’ teaching, dikaiosune, rendered “righteousness” in many English translations, could also be translated “justice” (as translators do in English versions of Plato’s Republic).The Septuagint, a second- and third- century B.C. Greek translation of the Old Testament, shows that “in the linguistic circles of the New Testament writers, dikaiosune did not clearly refer to either [justice or righteousness], but was ambiguous as between the two.”  (ibid., 112).  If so, the proper translation should be determined based the on context.  Wolterstorff suggests that it is especially likely that “justice” is the better translation in the second beatitude quoted in the text:

“Apparently, the translators [of the most common English translations] were not struck by the oddity of someone being persecuted because he is righteous.  My own reading of human affairs is that righteous people are either admired or ignored, not persecuted; people who pursue justice are the ones who get in trouble.” Ibid., 111.

It may be that dikaiosyne is a richer word than any English equivalent, referring to both an inner goodness and a just society. Plato in his Republic taught that dikaiosyne is not only a public quality of a city that treats its citizens appropriately but also an inner quality of a really good person.

The unstated, traditional assumption in Wolterstorff’s discussion of the beatitudes is that they identify qualities that are worthy of reward. One of us has argued, however, that the beatitudes identify qualities that would have been seen as negative within that culture and that the primary message of the beatitudes is that the kingdom of God is open to all. The poor and those who mourn are blessed—a big surprise to everyone in that culture. See Dallas Willard, The Divine Conspiracy: Rediscovering Our Hidden Life in God (San Francisco: HarperSanFrancisco, 1998), pp. 114-19. Consider the difference in meaning of two of Jesus’ well-known beatitudes if dikaiosyne is translated “justice,” rather than “righteousness”:

Blessed are those who hunger and thirst for [justice],
for they will be filled.” (Mt 5:6)
Blessed are those who are persecuted because of [justice],
for theirs is the kingdom of heaven.” (Mt 5:10)

Whatever the proper translation of dikaiosune, in the New Testament “Jesus is identified as inaugurating the reign of justice.”Wolterstorff, Justice, 107. When his followers pursue justice, they follow his call.

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03.  The Kingdom of God, Law and the Heart

Though law was important in Jesus’ teaching, it was not his most important concern.  The primary focus of his teaching was the condition of the heart.  First, we will address Jesus’ terminology.

Jesus’ use of the term law. Jesus used the term law to refer to different types of law.  In many situations, we must look to the context to determine to which type he refers.  At times Jesus referred to God’s eternal moral law— God’s intention for human life and action.  This is the law that God promised through the prophet Jeremiah to place in the believer’s mind and heart:

I will put my law in their minds
and write it on their hearts. (Jer 31:33).

At other times, Jesus referred to the civil law—the positive law—the rules and practices of those in human authority.  God’s moral law may or may not be reflected in the civil law.  In Jesus’ discussion of divorce, he contrasted the civil law with God’s moral law.  “Moses permitted you to divorce your wives because your hearts were hard [the civil law].   But it was not this way from the beginning” (Mt 19:8).  God intended that husband and wife be “no longer two, but one flesh.  Therefore what God has joined together, let no one separate [God’s moral law]” (Mt 19:6 NRSV).  We return to the distinction between civil law and God’s moral law in the following section “Law, Love and Character.”

Jesus encountered three types of civil law: Roman law, the Mosaic law as originally given by Moses, and the Mosaic law as expanded and interpreted by the Jewish tradition of Jesus’ day.  At various times, Jesus defied, obeyed, criticized, praised, reinterpreted, and affirmed the civil law; he invariably obeyed and praised God’s law.  The major concern of this essay is the implications of Jesus’ teaching for the civil law.

Law and the heart in God’s kingdom. The focus of Jesus’ preaching was “the good news of the kingdom” (Mt 4:23; Mk 1:15; Lk 4:43).  This kingdom’s availability was inaugurated with Jesus’ ministry. Willard, Divine Conspiracy. “The kingdom of God is in your midst” (Lk 17:20-21; see also Mt 11:12).  It was what C. H. Dodd describes as “realized eschatology.”C.H. Dodd, The Parables of the Kingdom, rev. ed. (New York, NY: Charles Scribner’s Sons, 1961). But Jesus also spoke of a future manifestation of the kingdom.  “Truly I tell you, I will not drink again from the fruit of the vine until that day when I drink it anew in the kingdom of God” (Mk 14:25). See Rudolf Bultmann, Jesus and the Word (New York, NY: Charles Scribner’s Sons, 1958) and Richard Horsley, Jesus and the Spiral of Violence: Popular Jewish Resistance in Roman Palestine (Philadelphia, PA: Fortress Press, 1992). Jesus’ kingdom was both the present and future kingdom.

Jesus’ most thorough teaching about the nature of the kingdom of God came in his Sermon on the Mount.  He taught that the kingdom is primarily about a change in the heart and will, rather than outward conformity to law.  He contrasted the Jewish legal code with his heart-based kingdom.  The Jewish law prohibited murder, but Jesus called the citizens of this new kingdom to not even be angry (Mt 5:21-22).  The Jewish law prohibited adultery, but Jesus called the citizens of this new kingdom to not even indulge in cultivated lusting (Mt 5: 27-28).  The Jewish law required oaths in some contexts, but Jesus prohibited oaths and taught that his followers’ word should be binding in all contexts (Mt 5:33-37).  The Jewish law imposed reciprocal penalties, an “eye for an eye, and a tooth for a tooth” (Ex 21:24; Lev 24:20; Dt 19:21), but Jesus called the citizens of his new kingdom to not respond to violence in kind and to love their enemies (Mt 5:43-48).  Compliance with these startling, seemingly impossible commands required (and requires) a change in heart.

The citizens of the new kingdom would go beyond the requirements of Roman law as well.  The Roman law required Jews to carry the packs of Roman soldiers a mile.  The citizens of this new kingdom would carry them two miles (Mt 5:40).  If someone sued them for their coat, they would give them their cloak as well (Mt 5:41).

Jesus’ kingdom was designed to generate a far more radical change than human law could bring.  The commitment to follow him would yield a transformed heart.  This change of heart would cause someone to want to do the good, in most cases automatically to do the good.  “A good [person] brings good things out of the good stored up in his heart” (Lk 6:45).  On the other hand, evil comes from the evil heart.  “It is from within, out of a person’s heart, that evil thoughts come—sexual immorality, theft, murder, adultery, greed, malice, deceit, lewdness, envy, slander, arrogance and folly” (Mk 7:20-22).

Though Jesus’ emphasis on the heart stood in marked contrast to the common Jewish teachings of the day, in fact it recaptured a theme that was prominent in the Jewish scriptures. Israel was to love God “with all your heart” (Deut. 6:5). When David committed adultery and murder, he prayed “create in me a pure heart” (Ps. 51:10). Through Isaiah, God said, “[The people’s] hearts are far from me. Their worship of me is based on merely human rules they have been taught” (Is. 29:13). At one point Jesus quoted this last verse to some Jewish law teachers and said, “You have let go of the commands of God and are holding on to human traditions” (Mk 7:8).

The transformed heart can do much for law.  Those with transformed hearts will be far more likely to comply with most aspects of the law than those who do not have such a heart.  They will go beyond the requirements of the law.  Following the change in heart called for by Jesus, disciples of Jesus can be left free to do what they want to do.  Moreover, a changed heart will lead one to be greatly concerned with justice, and thus with law.  Justice alone will never do justice to justice, but a heart of love will promote and require justice (and much more).

Jesus’ teaching about the heart is a check on his modern followers who might want a political or military kingdom. Christians must keep their priorities in order.  God’s kingdom may have implications for law, law may further kingdom values, but the kingdom does not come through law.  Indeed, in his kingdom, there is likely to be far less need for law.  Moreover, law can have little influence on the heart.  The transformation of the heart, like other components of following Christ, cannot be coerced.

Is Jesus pro- or antilaw? The Gospels give substantial attention to Jesus’ violations of the Jewish law and his arguments with Jewish legal authorities.  Was Jesus antilaw? A careful look at Jesus’ references to law reveals that he unswervingly affirmed God’s moral law and took a mixed approach to the civil law.

Jesus was often critical of the Jewish law of his day. In some respects it did too little—law, by its very nature, can have only a limited effect on the heart.  In other respects it did (or tried to do) too much—it had grown so large and complex that it was very difficult for anyone to comply with it.  To the law teachers, he said: “You load people down with burdens they can hardly carry” (Lk 11:46).  Law had evolved in ways that overlooked the original purpose of law—to serve people.

Jesus, like the prophets before him, often contrasted the Jewish legal practices of his day to God’s deeper and more important moral law.

Woe to you, teachers of the law and Pharisees, you hypocrites!  You give a tenth of your spices—mint, dill and cumin. But you have neglected the more important matters of the law—justice, mercy and faithfulness.  You should have practiced the latter, without neglecting the former.  You blind guides! You strain out a gnat but swallow a camel. (Mt 23:23-24).

Concern with the minutia of law can lead one to overlook the heart of the law—justice, mercy, and faithfulness.  (We often find this misplacement of priorities today in government administrative offices.)

Given some of Jesus’ teaching and actions, some in his day appeared to think he had come to abolish the law.  Jesus answered that concern in the Sermon on the Mount.

Do not think that I have come to abolish the Law or the Prophets; I have not come to abolish them but to fulfill them.  For truly I tell you, until heaven and earth disappear, not the smallest letter, not the least stroke of a pen, will by any means disappear from the Law until everything is accomplished.  Therefore anyone who sets aside one of the least of these commands and teaches others accordingly will be called least in the kingdom of heaven, but whoever practices and teaches these commands will be called great in the kingdom of heaven.  For I tell you that unless your righteousness surpasses that of the Pharisees and the teachers of the law, you will certainly not enter the kingdom of heaven. (Mt 5:17-20)For additional discussion of Matthew 5:17-20 in this volume, see “Jesus fulfilled the Law and Prophets” in chapter five.

This section raises three questions (at least).  First, what does it mean that Jesus “fulfilled” the law?  In our view, Augustine was correct to identify two meanings.  Jesus fulfilled God’s moral law by obeying all of its requirements.Augustine, Sermon on the Mount, 1.8. As we have noted, Jesus disobeyed the law as interpreted by the Jewish law teachers of his day.  For Jesus to say that he obeyed all the law’s requirements, then, implied that their interpretation was wrong.  He obeyed God’s law, not their defective human law.

Jesus also fulfilled the law by adding to the Mosaic law what it lacked.  As Oliver O’Donovan has put it, Jesus presented “an advance upon both the oral interpretations and the bare text.”Oliver O’Donovan, The Desire of the Nations: Rediscovering the Roots of Political Theology (New York: Cambridge University Press, 1996), p. 109 Jesus gave us a fuller understanding of God’s moral law.  We have seen that Jesus adds to the law by explaining its relationship with the heart.  In the section “Trials in Acts,” we will explore other ways that his teaching may have added to the Mosaic law what it lacked.  Finally, Jesus fulfilled the law by enabling people to obey it.

A second question arising from this section is: what does it mean that “not the smallest letter, not the least stroke of a pen, will . . . disappear from the Law”?  Initially, Jesus’ teaching here seems to be inconsistent with other parts of his teaching, which emphasize the importance of the heart, rather than obedience to the letter of the law.  In our view, Jesus’ affirmation here is best understood as affirming the details of God’s moral law.  “Not the smallest letter, not the least stroke of a pen, will by any means disappear from [God’s moral] Law.”

Alternatively, Jesus may have been using irony, possibly making a play on phrases that were used by the strictest of the Jews.  Jesus may have been saying, with calculated sarcasm, “I am more legalistic than the legalists, for I teach the deeper meaning of the law—the transformation of the heart.”

Finally, what does it mean that his followers’ righteousness must “surpass[] that of the Pharisees and the teachers of the law”?  This brings us back to the central message of the Sermon on the Mount: true righteousness requires a changed heart living interactively with God, not obedience to rules.  Jesus recognized the continuing validity of God’s moral law, while being critical of what the Jewish teachers had done with the Mosaic law.

Though Jesus was critical of many aspects of the Jewish law, in general, Jesus obeyed it, even its technical requirements.  He instructed those he had healed to comply with the law.  “Go, show yourself to the priest and offer the sacrifices Moses commanded” (Mk 1:44).  Indeed, William Loader notes that the “most striking feature of Luke’s presentation, both in the gospel and in Acts, is that there is an underlying assumption that both Jesus and those who surround him or later follow him are faithful to [the details of] Torah.” William R. G. Loader, Jesus’ Attitude Towards the Law: A Study of the Gospels(Grand Rapids: Eerdmans, 2002), p. 379.

In addition, Jesus suggested that people needed to be instructed both about the law and the kingdom of God.  “Every teacher of the law who has become a disciple in the kingdom of heaven is like the owner of a house who brings out of his storeroom new treasures as well as old” (Mt 13:52).  Law is valuable, but it needs to be understood in light of the teaching of the kingdom of God that the condition of the heart is primary.  Jesus changed the Mosaic law in some respects (e.g. Mt 5:33-37 (oaths) and Mk 7:19 (dietary laws)), but generally, his teaching about the law concerned the interpretation of the law, rather than whether one should obey it.  Jesus presumed that the law, rightly understood, should be obeyed.

As we note in the introduction to this chapter, John contrasts the Mosaic law with Jesus’ message and purpose. “The law was given through Moses; grace and truth came through Jesus Christ” (Jn 1:17).  But as Loader notes:

John’s account of Jesus’ attitude towards the Law assumes the Law as God’s gift to Israel through Moses.  It is appropriate to a level of reality which is both inferior and preliminary to the realm of the Spirit opened by Jesus.  It nevertheless pointed towards it and through its institutions to some degree prefigured it.” Loader, Jesus’ Attitude Towards the Law , p. 490.

Nevertheless, Jesus’ most striking response to law in his culture was to challenge it as a distorted expression of God’s moral law and of life in God’s kingdom.  His was a legalistic culture, where law had forgotten its purpose, where law served itself and its experts, rather than people.

Jesus’ response to modern culture might be more mixed.He might be more like Paul, who challenged Christians who participated in the permissive practices of Greece and Rome. See 1 Corinthians 5-7. Indeed, in our view, Jesus presented a balance regarding the importance of law that is sorely lacking in American legal culture.  Today, he would probably condemn the overly regulated areas of the modern legal system.  A striking example is the New York City housing regulation that rejected a homeless shelter operated by Mother Teresa’s Missionaries of Charity because it did not have an elevator.Phillip K. Howard, The Death of Common Sense: How Law Is Suffocating America(New York: Warner Books, 1994), pp. 3-5. Some areas of Western life are so heavily regulated that people are prohibited from taking actions that would assist human flourishing.  Law still, at times, “strain[s] out a gnat,” while “swallow[ing] a camel” (Mt 23:24).

But as to some areas of modern life, we believe Jesus would present a very different message.  In some areas the lack of law yields great injustice.  As O’Donovan notes:

It is a Western conceit to imagine that all political problems arise from the abuse or over-concentration of power; and that is why we are so bad at understanding political difficulties which have arisen from a lack of power, or from its excessive diffusion.O’Donovan, Desire of the Nations, p.94.

A visit to countries that have no operative legal system (Somalia is an example at the time we write) is likely to convince anyone of the importance of law.

The most common subject of controversy between Jesus and the law teachers of his day concerned the sabbath.  Whereas Jesus encountered those who had a legalistically rigid view of the sabbath, that is not the problem in our largely antinomian era.  Today, the sabbath and its underlying principles are completely ignored by personally driven workaholics (to their and their families’ great detriment), as well as owners of Asian sweatshops, worldwide cruise lines, and elite American law and accounting firms.  Modern workweek-limitation statutes share some of the humane objectives of God’s original sabbath.  As we note below, the sabbath was rooted in creation and it “was made for man” Mk 2:27).See the section “Lawmaking as an act of love.” For additional discussion of the Sabbath in this volume, see also chapter three. Law should serve human good.  It can miss that objective when it is either so consumed with details that it loses sight of people or so weak that it fails to protect them.

A place for civil law in the kingdom? Some Christians believe that there is no place for Christian support of civil law because of the coercion that is an inherent part of it.  The foremost proponents of this view are the Anabaptists.

The sword is ordained by God outside the perfection of Christ.  It punishes and kills evil people and protects and defends the good.  In the law the sword is established to punish and to kill the wicked, and secular authorities are established to use it.  But in the perfection of Christ the ban [excommunication] alone will be used to admonish… Michael Sattler, The Schleitheim Articles: The Brotherly Agreement of Some Children of God Concerning Seven Articles,” in The Radical Reformation, ed. Michael G. Baylor (Cambridge: Cambridge University Press, 1991), 176-77.

The belief that Christians may not use force, a necessary element of government, leads to Anabaptists to separate themselves from coercive political and legal culture.  Nevertheless, there is a place for Anabaptist influence in the world.  They are to influence the world by modeling the teachings of Christ. Modern proponents of this view, Stanley Hauerwas and William Willimon argue that: “the political task of Christians is to be the church rather than to transform the world.”Stanley Hauerwas and William H. Willimon, Resident Aliens: Life in the Christian Colony (Nashville, TN: Abingdon Press, 1989), 38.

Anabaptists find support for their position in Jesus’ rejection of political power.  Following Jesus’ arrest, when asked by Pilate whether he was the King of the Jews, Jesus said, “My kingdom is not of this world.  If it were, my servants would fight to prevent my arrest by the Jewish leaders.  But now my kingdom is from another place” (Jn 18:36).  Anabaptists argue that Christians should reject governmental authority as Christ did. See Sattler, The Schleitheim Articles, 177, citing Jn 6:15 (a crowd sought to make Jesus king by force, but he withdrew).

We agree that Jesus should be our model in everything we do, but in our view, the question should be, What would Jesus do if he were me?  Jesus rejected political power, but he also rejected a lot of other options.  During his time as a rabbi, he was not a farmer, businessman, or lawyer.  We cannot all follow his vocation.  The fact that Jesus did not exercise political or legal power should not keep Christians from doing so, so long as they can do so consistent with his moral teaching.  That, of course, is the key question.  We will return to it.

Other Christians, including Martin Luther, agree with Anabaptists that the rules of Jesus’ kingdom are inconsistent with the rules of this world’s kingdoms.  They believe that the kingdoms of this world cannot operate on Jesus’ rules, but they argue that government service can be an appropriate manifestation of love. Political and military service are “necessary to the common life, and [are] therefore spheres in which the neighbor could be served and God be obeyed.” H. Richard Niebuhr, Christ and Culture,(San Francisco: HarperSanFrancisco, 2001) pp. 156-57, summarizing Luther’s view. However, in his “Sermon on ‘The Sermon on the Mount,’” Luther says “Do you want to know what your duty is as a prince or judge or a lord or a lady, with people under you?  You do not have to ask Christ about your duty.  Ask the imperial or the territorial law.”Martin Luther, “Sermon on ‘The Sermon on the Mount’” in From Irenaeus to Grotius: a Sourcebook in Christian Political Thought, 100-1625, ed. Oliver O’Donovan and Joan Lockwood O’Donovan (Grand Rapids: Eerdmans Publishing, 1999), p. 599.

Some find support for the separation of Jesus’ teaching from the governmental realm in one of Jesus’ exchanges:

Some . . . Pharisees and Herodians [sought] to catch [Jesus] in his words . . . [They asked:] “Is it right to pay the imperial tax to Caesar or not? Should we pay or shouldn’t we?”

But Jesus knew their hypocrisy. “Why are you trying to trap me?” he asked. “Bring me a denarius and let me look at it.” They brought the coin, and he asked them, “Whose portrait is this? And whose inscription?”

“Caesar’s,” they replied.

Then Jesus said to them, “Give to Caesar what is Caesar’s and to God what is God’s.”

And they were amazed at him. (Mk 12:13-17)

In our view, this is a story of Jesus’ cleverness, rather than a story from which an important theological truth about Jesus and the state can be drawn.  Matthew set the story up that way.  Jesus’ inquisitors asked a question that was designed to trap Jesus.  If he answered that the Jews should pay taxes, he would get into trouble with the rebellious elements of Judaism.  If he answered that the Jews should not pay taxes, he would get into trouble with the Romans.  “But Jesus knew their hypocrisy.”  His answer merely begged the question of what is due to Caesar.  As O’Donovan notes, “‘Render to Caesar…’ was not a means of Jesus acknowledging a two-fold authority.  The crowds admired his clever answer—he did not deny [his inquisitors’] claim, but brushed it aside.” O’Donovan, Desire of the Nations, 93.

Though we disagree with Luther’s view that Jesus’ teachings have no implications for government, we share his view that some portions of Jesus’ teachings were meant to address Christians in their individual capacity, not in a governing capacity.  Turning the other cheek (Mt 5:39) is difficult for an individual Christian; it would be impossible for a government.  But as we noted earlier, justice was an important theme in Jesus’ teaching.  Short of a universal change of heart, law and its required coercion are necessary means to obtain justice.  The development and enforcement of just laws are significant means whereby Christians can show love to their neighbors.  As Paul teaches in Romans, God appoints governing officials as servants for human good, agents of God to bring punishment on wrongdoers (Rom 13:1-5). For additional discussion of Romans 13 in this volume, see “Christians and the Civil State in the New Testament” in chapter seven and “The State, Law and Empire” in chapter eight. In our view, Jesus’ followers properly seek to bring about justice through law.

Jesus taught Christians to pray “Your kingdom come, your will be done, on earth as it is in heaven” (Mt 6:10).  He encouraged us to: “Seek first his kingdom and his righteousness [or justice!]” (Mt 6:33). See also Lk 12:31. Though Jesus taught that the primary method of bringing in his kingdom was through changes in the heart, we believe that just laws are a part of that kingdom.  The change of a person’s heart is not merely a private event, as is so often thought, but has a vast range of insuppressible implications for life, including life as a citizen.  God’s kingdom has come to the extent that his will is done on earth.  God is a God of justice, and—though not as important as changes to the human heart—adoption and enforcement of fair laws are means whereby his will is accomplished.

The character of those who administer law is profoundly important for how law is practiced and received, and its effects.  A cruel or irrational judge, prosecutor, or policeman can have a devastating effect upon public and private well-being and righteousness.  Who better than a person living with Christ in Christ’s kingdom to administer law in a just manner?  As Augustine argues: “[The rule of Christians] is beneficial, not so much for themselves as for their subjects.” Augustine, City of God, Bk. IV, Ch. 3. trans. Gerard G. Walsh, et. al.,(New York, NY: Doubleday, 1958), 88. As we argue in the following section, unlike Luther we believe that Jesus’ teachings have much to teach governing officials about how government power should be exercised.

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04.  Law as a Means of Loving One’s Neighbor

Jesus enjoined his followers to love broadly.  They were to love neighbors, Samaritans, and enemies.  Jesus placed love at the center of the law.  Love of God and neighbor are the first and second greatest commandments (Mk 12: 28-34).  Indeed, they are the framework on which all of the law hangs (Mt. 22:35–40).  “In everything, do to others what you would have them do to you, for this sums up the Law and the Prophets” (Mt. 7:12).  As Calvin put it, the purpose of the Mosaic civil law was “to preserve that very love which is enjoined by God’s eternal law.” John Calvin, Institutes of the Christian Religion, 4.20.15, in John Calvin: Selections from His Writings, ed. John Dillenberger (New York, NY: HarperCollins Publishers, 2001), 490. “Every nation is left free to make such laws as it foresees to be profitable to itself. Yet these must be in conformity to that perpetual rule of love.”Ibid. Love can be reflected in laws as dramatic as those prohibiting murder and those ensuring that criminal defendants have fair trials to laws as seemingly mundane as those prohibiting drivers from double parking.

Lawmaking as an act of love: law was made for humans, not humans for law. Lawmaking itself can be an act of love toward the neighbor.  Jack Sammons suggests this possibility in his discussion of the story of the Good Samaritan.Jack L. Sammons, “Parables and Pedagogy,” in Gladly Learn, Gladly Teach: Living out one’s calling in the 21st Century Academy, ed. John M. Dunaway (Macon, GA: Mercer University Press, 2005), 46. Jesus, in conversation with an expert in the law, established that the greatest commandments are that we are to love God and our neighbor.  The expert in the law, “want[ing] to justify himself,” asked Jesus: “Who is my neighbor?” (Lk 10:29).  Jesus responded with the story of the Good Samaritan, in which the hated Samaritan served as the role model, caring for the needs of a man, presumably a Jew, who had been beaten and robbed.

Without diminishing the importance of the Samaritan’s individual acts of care, we should recognize that those who develop laws can also serve humankind through legislation.  Legislation might deal “with the underlying problems of the dangerousness of passage to Jericho, or the need for medical care to travelers in distress, or, for that matter, the hardhearted financial shrewdness of innkeepers.”Ibid. p. 53. The development and enforcement of wise laws can be among the most loving acts in which a person can engage.

On another occasion, Jesus made it clear that the purpose of law is to serve people.  Some Jewish legal officials criticized Jesus’ disciples for picking grain on the Sabbath. Jesus said: “The Sabbath was made for man, not man for the sabbath” (Mk 2:27).  Note that Jesus grounded the sabbath in creation, rather than the Mosaic law.  God created it for man.   In addition, as Loader says, Jesus “sees the sabbath as more gift than command.”Loader, Jesus’ Attitude Towards the Law, 130. Moreover, in contrast to the dominant rabbinic teaching that the Sabbath was made for the Jews, Jesus taught that the sabbath was made for all of humanity.See Meier, Law and Love, pp. 281-83. Implicit in this teaching is the notion that all law was made for man.  Human law has instrumental value; it is not an ultimate value.  Law should be evaluated based on its impact on human lives.

Jesus was particularly harsh with those who criticized him and his disciples for failure to abide by ceremonial laws but failed to care for their elderly parents (Mk. 7:1-13).  He criticized the teachers of the law who meticulously tithed their mint, dill and cumin, but “neglected the more important matters of the law—justice, mercy and faithfulness” (Mt 23:23).  Note that these “more important matters of the law” all have to do with humans flourishing.  Justice, mercy and faithfulness should be the focus of law.

 

Law and poor people.  As we have seen throughout this volume, the Old Testament identified the most vulnerable of society—the poor, the widow, the orphan, and the alien—as special objects of God’s love.For additional discussion in this volume, see “The message of the Prophets” in chapter five. Jesus shared this compassion.  In his inaugural sermon, quoting Isaiah, Jesus identified himself as having come “to proclaim good news to the poor,  . . . to proclaim freedom for the prisoners and . . . to set the oppressed free” (Lk 4:18-19, quoting Is 61:1-2; see also Mt. 12:15-21).  Jesus’ “radical concern for people in need” is reflected in his teaching on law. Loader, Jesus’ Attitude Towards the Law, 130 (commenting on Mark’s Gospel).  Loader also notes that “Much of Jesus’ distinctive Torah interpretation in Matthew reflects the value of compassion for the needy.”  Ibid., 265.

Jesus’ call to care for those in need is challenging to the individual.  It is also challenging to those who are concerned with law.  At times, we have been in classes or other gatherings in which we have discussed the nineteenth-century fight against slavery and the slave trade, led in England largely by William Wilberforce, the Clapham Circle and other Christians.  This was followed by the fight against slavery in the United States and the American Civil War.  People ask how previous generations could have allowed something so obviously wrong as slavery.  The answer is probably a combination of both lack of moral insight and lack of economic insight.  The discipline of economics was in its early development.  The abolition of slavery required the development of new economic structures.O’Donovan, Desire of the Nations. But many in slave-holding generations did not even recognize that there was a problem.

In such discussions, after a bit of self-righteous criticism of slave-holding generations, the question arises whether there are aspects of modern society on which generations two hundred years from now will look back, shake their heads and wonder how we could have been so blind.  We suspect that the persistence of world poverty may be such an issue.  Many innocent people in the world, including many children, live on the edge of starvation.  We suspect that Jesus would lament the persistence of poverty and applaud attempts to develop laws that alleviate it.

Poverty is, of course, a complex problem.  We witnessed the heady days of the Great Society in America in the 1960s, when many expected that doing away with poverty was just around the corner.  In that same era, many Christians applauded the work of Tanzania’s idealistic Christian philosopher/president Julius Nyerere, who sought to implement Christian socialism. Martin Meredith, The State of Africa: A History of Fifty Years of Independence (New York, NY: Free Press, 2005), 249-74. The results of both efforts were deeply disappointing.  Many attempts to alleviate poverty have been counterproductive, generating dependence, undercutting the generation of wealth, and damaging the family (one of the institutions that does the best job of combating poverty).

As we have noted, Jesus’ primary concern was with the heart.  One of the firstfruits of hearts changed by Jesus will be a deep concern for the poor.  Here, as in many areas, Jesus did not provide easy answers. We suspect that he would affirm the Catholic teaching that laws (and all actions) should be evaluated first based on their impact on the poor.  This change of heart will manifest itself in the work of economists, entrepreneurs, social workers, and, yes, those who write and enforce laws, crafting means both to care for the poor and to enable them to develop skills and disciplines that will equip them to flourish and contribute to the common good.

Legal administration as an act of love: legal officials are made for man, not man for legal officials. As Gary Haugen and Victor Boutros have noted, many of the greatest injustices to which poor people in developing countries are subjected are not a result of the content of their countries’ laws. Gary Haugen and Victor Boutros, “And Justice for All: Enforcing Human Rights for the World’s Poor,” Foreign Affairs 89 (May/June 2010). Their laws prohibit slavery, extortion, land grabbing, human trafficking, child labor, and prostitution, but no one enforces these laws.  The law on the books is different from the law on the street.  Government corruption is at the root of much of this problem; only those who can pay get justice.  Police, prosecutors, court personnel and judges—those who are supposed to protect poor people—take advantage of them.

Jesus suggested that law administration, as well as lawmaking, can be an exercise of love.  On one occasion, Jesus’ disciples and the mother of two of his disciples were verbally jockeying for position in Jesus’ future kingdom.  Jesus gave them a challenging picture of leadership.

You know that the rulers of the Gentiles lord it over them, and their high officials exercise authority over them. Not so with you. Instead, whoever wants to become great among you must be your servant, and whoever wants to be first must be your slave— just as the Son of Man did not come to be served, but to serve, and to give his life as a ransom for many. (Mt 20:25-28; see also Lk 22:24-30)

Jesus criticized a familiar characteristic of political leaders—they “lord it over” the people who are subject to their control—they push them around.  Law is, of course, a common means that leaders use to push people around.  Jesus’ criticism of Gentile leaders suggested that leaders, as well as laws, should serve people.  He set a high standard for leaders, holding up his own sacrifice as a model.

On another occasion, Jesus provides a similar challenge to legal experts.  “And you experts in the law, woe to you, because you load people down with burdens they can hardly carry, and you yourselves will not lift one finger to help them” (Lk 11:46).  Good leaders will help people comply with law, not merely wait around to catch them when they fail.  Good leaders will teach, interpret, and give direction.

Legal administration, as well as lawmaking, can be a means of loving people.  Those who enforce and administer the law, from a country’s president to the clerk at the Division of Motor Vehicles, have an enormous impact on people’s lives.  Jesus’ model is that of servant/leader.

Law, love and character. Jeffrie Murphy advocates organizing law around the value of Christian love.Jeffrie G. Murphy, “Christian love and criminal punishment,” in Christianity and the Law: and Introduction, eds. John Witte and Frank S. Alexander (New York, NY: Cambridge University Press, 2008), 219. But he notes that Christian love is not cuddly. It seeks the best for people and is not simply concerned with making their lives more pleasant.  If Christian love is our aim, we will “design legal practices and institutions with a view to the moral and spiritual improvement in virtue of affected citizens.”Ibid., 224 Law, from regulations governing pornography to the treatment of those in prison, will be concerned with citizens’ character.

Character is largely what one does without thinking.  Most often our character determines what we do.  Law creates habits, good and bad, and these habits can become virtues and vices—good and bad moral habits.  Young people can be formed by law, especially when they see law as good, sensibly exemplified in elders.  The ancients and the entire biblical tradition sought the goodness of the lawgivers, a concept that is foreign today.  Law can and must reinforce the practices of the good.

Law can even be a means of teaching citizens to love one another.  The Mosaic law required Jews to show love toward their neighbors.  It required farmers to allow poor people to take the crops at the edges of the farmers’ fields (Lv 23:22), thereby, hopefully, teaching them to love poor people and to be generous.  Just as parents teach their children to love each other by requiring them to go through the motions of forgiving and sharing, it may be that laws requiring citizens to behave well toward one another, appropriately implemented, will teach them to love their neighbors.

But there is a significant limit to what law can do to influence character.  The development of character requires the exercise of free choice.  Too much law gives little room for character to operate and develop.  Morality is primarily an internal matter—choosing the right thing for the right reason.  Nevertheless, law can settle people down, limit their passions’ control and enable them to appreciate the good. Robert P. George, Making Men Moral (Oxford University Press 1995) (commenting on Aristotle’s thought), 25. Enhancing freedom that is consistent with justice should be a primary goal of law.  Wise laws will work themselves out of a job, building character and creating the possibility for citizens to exercise greater freedom.

The good and evil in us all. Jesus taught another lesson, by both his actions and his words.  As we noted earlier, one of the primary things that people noticed about Jesus was that he ate and drank with sinners.  He criticized the “good people”—the Pharisees and law teachers—and welcomed as friends the outsiders—sinners, prostitutes and tax collectors.  Jesus did not recognize a comfortable distinction between the bad people and the rest of us.  The rewards to the self-righteous were merely the ego trips they enjoyed—“they have received their reward” (Mt 6:5, 16); Jesus befriended repentant tax-collectors and prostitutes.

Jesus not only loved and forgave “the bad people,” he taught that his followers are to do the same; they are to love their enemies and forgive those who wrong them (Mt 5:38-48; 18:21-22).  Miroslav Volf, who experienced the ethnic violence of late-twentieth century Bosnia, sees a tie between forgiveness and the recognition of the evil and the good in us all:

Forgiveness flounders because I exclude the enemy from the community of humans even as I exclude myself from the community of sinners. But no one can be in the presence of the God of the crucified Messiah for long without overcoming this double exclusion—without transposing the enemy from the sphere of monstrous inhumanity into the sphere of shared humanity and herself from the sphere of proud innocence into the sphere of common sinfulness. When one knows that the torturer will not eternally triumph over the victim, one is free to rediscover that person’s humanity and imitate God’s love for him. And when one knows that God’s love is greater than all sin, one is free to see oneself in the light of God’s justice and so rediscover one’s own sinfulness.Miroslav Volf, Exclusion & Embrace: A theological Exploration of Identity, Otherness, and Reconciliation (Nashville, TN: Abingdon Press 1996), 124.

This recognition should affect our treatment of people who are charged and convicted of crime.  As Jeffrie Murphy notes, Christian love “does not forbid punishment. What it forbids is punishment out of hatred or other vindictive passions.”Murphy, “Christian Love and Criminal Punishment,” p. 231 (emphasis in original). Jesus’ love can be contrasted with the indifference, hatred and cruelty that often underlie criminal punishment.  Jesus would, no doubt, be distressed at countries that lock up so many of their citizens, hide them away and expose them to inhumane conditions.

Injustice, love and forgiveness: personal and social implications. Jesus calls for both justice and love.  Both concepts have implications for law, but many commentators find tension between them.  By some definitions, justice yields what people deserve; love yields what is best for them whether they deserve it or not.  Jesus seems to generally teach that in our personal relations (at least), love trumps justice.  Victims should not seek an eye for an eye.  Irrespective of our rights, when attacked we should turn the other cheek (Mt 5:38-39); when sued for our tunic we should give our cloak as well (Mt 5:40), when wronged we should forgive (Mt 18:21-22) and when asked we should give (Lk 6:30).  Jesus speaks to wrongdoers, as well as victims. If someone has something against me, my top priority—higher than worship!—is to go and be reconciled (Mt 5:23-24). These teachings present challenges to private individuals, lawyers, social groups and governing officials.

When individuals are the victims of injustice, should the seek their legal rights? In the Sermon on the Mount, Jesus addresses those who face litigation an (as throughout the Sermon) focuses on the heart (Mt 5;25-26). We are to be well disposed or kindly minded (eunoon) toward our adversaries in the interactions that lead up to a trial. We are to try, with genuine love for the adversaries, to resolve the matter. If we fail to resolve our dispute, we limit ourselves and our adversaries to the resolution that law and the human system might yield. Jesus does not say that we should simply give in to the demands of adversaries. Rather, we are to be genuinely committed to what is good from them, seeking their well-being. This may require that we not give into their demands.

Calvin argues, citing Romans 13:4, that Christian use of the courts is appropriate, for “the magistrate is minister of god for our good.” Those who are “undeservedly oppressed” may put themselves “in the care of the magistrate” and seek “what is fair and good,” so long as they are “far from all passion to harm or take revenge, far from harshness and hatred, far from burning desire for contention.” Calvin acknowledges, however, that “as the customs of these times go, an example of an uprights litigant is rare.Calvin, Institutes, 4.20.15, in John Calvin, ed. Dillenberger, p. 493. Unfortunately, in this respect, customs have not changed over the last five centuries.

In God’s kingdom, apology, forgiveness and reconciliation are the preferred means of resolving a wrong. Sadly, attorneys often undercut these possibilities. Attorneys often, as a matter of course, instruct clients not to speak to the opposing party. This practice is encouraged by the rules in many jurisdictions, which treat an apology as an admission of guilt. In client-counseling sessions, many attorneys inflame the client’s most selfish instincts, rather than serve as wise, objective counselors. Attorneys almost reflexively excuse the client and blame the opposing party for any loss. Too often they serve to exacerbate rather than resolve conflict. This is not to suggest that lawyers do not exercise an important role within a legal system, speaking for clients and presenting the client’s side of a case. The justice system depends on such advocacy. But lawyers should raise for discussion with clients the possibility of apology, forgiveness and reconciliation. A lawyer thereby can be an instrument of peace and serve the deepest interest of clients.

Jesus’ call for justice and love of enemies presents challenges at the social, as well as he individual, level. Whereas some social activists, including theologian Cornel West. Argue that despair and rage are essential elements in the struggle for justice,NBC News, June 2, 1996. Jesus calls for us to resist the fire of anger (Mt 5:22). Anger imposes a high price on the parties on both sides of a conflict and on the public as well. Those who encourage anger are sowing the wind, and they will reap the whirlwind and the tornado. Indeed, we are reaping it now among people increasingly sick with rage and resentment. But there is nothing that can be done with anger that cannot be done better without it. Jesus’ call is to right wrongs with persistent love.See Willard,  Divine Conspiracy, pp. 147-51.

Injustice, love and forgiveness: implications for the state. And what are love’s demands on governing officials who have the responsibility to protect citizens and ensure justice? If government officials followed  Jesus’ command to forgive those who do wrong and to give to all who ask, it would destroy the government’s ability to comply with Jesus’ call for justice and probably destroy the government’s ability to govern.Paul appears to call for an exercise of different roles in different capacities.  Compare Romans 12:19 NIV 1984 (“Do not take revenge, my friends, but leave room for God’s wrath”) with Romans 13:4 NIV 1984 (the magistrate is “God’s servant, an agent of wrath to bring punishment on the wrongdoer”). For additional discussion of Romans 13 in this volume, see “Christians and the Civil State in the new Testament” and “The State, Law and Empire” in chapter eight.

To forgive those guilty of crime would often be unjust to past and future victims. To give to all who ask might be unjust to others.  A legislator cannot give to all who ask (when everyone is asking).

The nature of Christian love resolves some of the apparent tension between love and justice.  As noted previously, Christian love can be tough love; it will give a person what he needs, not necessarily what he wants.  But even tough love may be inconsistent with justice; giving someone what he needs may be inconsistent with fairness to everyone else.

Some, including this book’s co-editor David VanDrunen, have argued that Jesus’ demanding kingdom ethics apply institutionally only within the church.David VanDrunen, “Bearing Sword in the State, Turning Cheek in the Church: A Reformed Two-Kingdoms Interpretation of Matthew 5:38–42,” Themelios 34, no. 3 (2009): 322-34.  By this view, the lex talionis, “an eye for an eye,” remains the standard of justice for the state; though Christians rightfully manifest forgiving and reconciling love within the church and with their neighbors, they should support the state’s imposition of proportionate retributive justice.  This institutional division of Christian standards into love within the church and retributive justice administered by the state is analogous to Luther’s division of authority, discussed previously.  But, where Luther argued that government operates on its own rules, VanDrunen finds the state’s standards in the Old Testament’s lex talionis and in Paul’s teaching in Romans 13.

In our view, this too neatly avoids the difficult work of determining the implications of Jesus’ teaching on love.  There is no basis for such a division of authority in Jesus’ teaching.  Indeed, he taught that love is the framework on which the law hangs. Love is the standard by which law, including the lex talionis, should be judged.  Moreover, Jesus’ kingdom is primarily about a change in the heart, not about the application of rules.  That change of heart, and its accompanying Christian virtues, should affect all of life.  Are Christians involved in government leadership to have one heart for the home and the church and another heart for the office and the courtroom?  This is not to say that it will be easy to determine the implications of Jesus’ teachings for the law.  We see that as the challenge that Jesus presents to his followers who are concerned with law.

From one view, justice is not merely consistent with love; it is the way that love is manifested by one with responsibilities to a group.  As William Temple said, justice is “the primary form of love in social organization.”Jeffrie G. Murphy, “Christian Love and Criminal Punishment,” p. 219. One in authority should not show special love to privileged individuals, but to all who might be affected by an action.  We are communal beings and must attend in love to everyone involved.  In the family setting, not everyone can determine where to go on a family vacation.  If agreement cannot be reached, fair decision-making measures (e.g., turn-taking) must be identified.  In a country, government leaders must develop and implement fair procedures.  Justice is generally the most loving thing that one can do for all of the people in a family or a state.

In our view, the best resolution of conflicts between love and justice at the institutional level may be the traditional Christian formulation:  “justice tempered with mercy.”Oliver O’Donovan traces this formulation to Ambrose.  O’Donovan, Desire of the Nations, 200. The primary goal of one in authority—whether legislator, administrator or judge—should be justice.  In cases where circumstances warrant, a concern for mercy might vary an outcome.  A judge might reduce a sentence based on the illness of a defendant or the needs of his family; a legislature might give welfare caseworkers discretion to give greater benefits to those encountering unexpected needs.  The advice of Augustine still captures the sort of judgment that a heart transformed by Christ might dispense:

We call those Christian emperors happy who govern with justice . . . We call them happy . . . when they are slow to punish, not out of private revenge, but only when forced by the order and security of the republic, and when they pardon not to encourage impunity, but with the hope of reform; when they temper with mercy and generosity the inevitable harshness of their decrees. Augustine,i>City of God, trans. Walsh et. al., 5.24, p. 118.

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05.  God’s Moral Law, the Mosaic Law and Legislation

In some of Jesus’ most helpful teaching regarding the relationship between God’s moral law and civil law, he addressed the only section of the Mosaic law that discusses divorce.For additional discussion in this volume of the Mosaic law’s and Jesus’ teaching on divorce, see “Marriage, Divorce and Sexuality” in chapter three. The Mosaic law prohibited a man from remarrying his ex-wife following her remarriage and her divorce from or the death of her second husband.  Nevertheless, the law appeared to accept the husband’s divorce if the wife “becomes displeasing to him because he finds something indecent about her, and he writes her a certificate of divorce” (Deut 24:1-4).  The meaning of this section was hotly disputed in Jesus’ time among Jewish legal scholars.  Shammai took the stricter view:  “A man should not divorce his wife unless he has found her guilty of some unseemly conduct”; whereas Hillel said that he may divorce her “even if she has merely spoilt his food.” “Tractate Gittin: Folio 90a,” in Soncino Babylonian Talmud, ed. Isidore Epstein (London: The Soncino Press, 1952), reporting the views of each. Here is the account of Jesus’ discussion of the matter:

Some Pharisees came to [Jesus] to test him. They asked, “Is it lawful for a man to divorce his wife for any and every reason?”

“Haven’t you read,” he replied, “that at the beginning the Creator ‘made them male and female,’ and said, ‘For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh?’ So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.”

“Why then,” they asked, “did Moses command that a man give his wife a certificate of divorce and send her away?”

Jesus replied, “Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning. I tell you that anyone who divorces his wife, except for marital immorality, and marries another woman commits adultery.” (Mt 19:3-8, quoting Gen 1:27; 2:24).

Jesus pushed the Pharisees beyond the controversy back to God’s moral law, back to God’s original design that marriage be a permanent union of two lives.  As in Jesus’ teaching on the sabbath—“the Sabbath was made for man”—Jesus looks back to creation.  (Mk 2:27). God’s moral law takes us back to the Garden. Jesus bases his position on Genesis 1:27 and Genesis 2:24, two verses that do not appear to have been paired before in addressing divorce. Jonathan Burnside notes that Jesus thereby employed a “remarkable” exegetical technique: “Jesus combines two distinct and unrelated texts that have nothing to do with divorce, and this leads to something that does not address the issue.”Jonathan Burnside, God, Justice, and Society: Aspects of Law and Legality in the Bible (Oxford: Oxford University Press, 2011), p. 407 (emphasis in original).

For our purposes, the important part of the exchange is Jesus’ reference to the Mosaic law: “Moses permitted you to divorce your wives because your hearts were hard. But it was not this way from the beginning.”  Moses allowed, but did not approve of, divorce.  Jesus does not criticize Moses for allowing divorce.  He notes that Moses allowed divorce “because your hearts were hard.” The Israelites suffered from, in John Meier’s words, “a stubborn refusal at the core of [their] being to hear and obey God’s word.”Meier, Law and Love, p. 122. Knowing all too well our fallen human nature and consequent inability to conform to God’s moral law, Jesus approved of civil law that explicitly permitted and even identified the procedures for deviations from God’s moral law.  “Jesus [here] makes the radical claim that it is halakhically permissible to divorce in circumstances when it is not morally right to do so.”Burnside, God, Justice, and Society, p. 406 (emphasis in original).

It is likely that Moses (and Jesus) envisioned the harmful consequences that would have arisen if divorce was not allowed: some husbands would abandon wives and take other women without benefit of divorce; or, worse, husbands might kill their wives in order to get rid of them; husbands would father illegitimate children; it would be unclear whether abandoned women were free to remarry; prospective husbands would risk being accused of adultery if they married abandoned wives; abandoned wives and children would be destitute; inheritance rights would be unclear and inheritance disputes would generate conflict; and children of new relationships would not be provided for at death.  Law that yielded these consequences would be the opposite of love.  In light of these consequences, Moses allowed divorce.  Civil law has instrumental value; it is not the ultimate value.

Many commentators speak of the Mosaic divorce legislation as a grudging acceptance of divorce, as if it is an unusual deviation from God’s moral law:

Hebrew law . . . does not institute divorce, but tolerates it, in view of the imperfections of human nature. S. R. Driver, A Critical and Exegetical Commentary on Deuteronomy (Edinburgh: T & T Clark, 1902), p. 272.

Divorce is a bad custom which has grown up amongst a degenerate people, and the Mosaic law tolerated it as an accommodation to a low level of moral custom. Willoughby C. Allen, A Critical and Exegetical Commentary on the Gospel According to St. Matthew (New York: Charles Scribner’s Sons, 1907), p. 204.

[Moses] did not give a law about divorce and approve of it by his consent, but when men’s wickedness could be restrained by no other means, he applied the most tolerable remedy, so that a man might at least bear witness to his wife’s chastity.Ibid., at 245.

Though we do not disagree with these statements, we think that divorce may not be the only place where, in light of the hardness of human hearts, the Mosaic law permitted and regulated activity that deviated from God’s moral law.

Both Justin Martyr and Irenaeus argued very early in the Christian tradition that a good portion of the Mosaic law did not belong to unchanging moral standards—some of it was simply God’s wise and prudent way of providing an appropriate framework for the communal life of his people at that unique time in history. See, e.g., St. Justin Martyr, Dialogue With Trypho, trans. Thomas B. Falls, rev. Thomas P. Halton, ed. Michael Slusser (Washington, DC: Catholic University of America Press, 2003);  Irenaeus, Against Heresies, in The Ante-Nicene Fathers, vol. 1, ed. Alexander Roberts, James Donaldson and A. Cleveland Coxe (1885; repr., Grand Rapids: Eerdmans, 2001), esp. Book IV. In addition, the view that Jesus affirmed Moses’ creation of best-practical-alternative human laws may provide a basis for understanding some of the troubling aspects of the Mosaic law. For example, the Mosaic law need not be taken to have approved of slavery, any more than to approved of divorce. Jesus’ reaction to slavery provisions in the Mosaic code might well have been similar to his reaction to divorce: “Moses permitted slavery because your hearts were hard. But it was not this way from the beginning.” Augustine argued that it was not God’s intention in the beginning that there be slavery. According to Augustine, man was appointed to rule over the rest of God’s creation (citing Gen 1:26) but not one another. “God wanted rational man, made to His image, to have no dominion except over irrational nature. He meant no man, therefore, to have dominion over man, but only man over beast.” Augustine, City of God, trans. Walsh et. al., 19-15, p. 461. Augustine appears to have accepted the necessity of man ruling over man as a result of the fall, but Jesus’ comments on divorce suggest that it is appropriate for legislation to seek to get back to God’s original standard.  Under this view, if the social circumstances are such that people will follow a rule that is closer to God’s moral law (on divorce or slavery), the wise legislator will pursue it.  Jesus’ comments on divorce suggest that it is appropriate for legislation to seek to get back to God’s moral law.

Jesus might also have said similar things about some of the harsh punishments of the Mosaic code, possibly including capital punishment in many cases.  As noted elsewhere in this volume,See “Criminal law” in chapter three. the Mosaic law imposed the death penalty for many offenses, including being disrespectful to one’s parents, engaging in homosexual activity and engaging in adultery.  It may be that Moses ordered capital punishment for many of these offenses because “your hearts were hard.”  Such punishment was a prudential response to the situation of the time—a nomadic people who did not have the option of life imprisonment—but in a different situation, law might more closely approach God’s ideal; the death penalty might be abolished or reserved only for the worst of crimes.For discussion this volume of capital punishment in the case of murder, see “The covenant with Noah” in chapter one. This is consistent with the current Catholic position on the death penalty:

Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity with the dignity of the human person. Catechism of the Catholic Church: Second Edition (Doubleday: New York, 1995), pp. 604-5.

The use of oaths in the Mosaic law (see Ex 22:9-10 and Num 5:11-31) may also have been a concession to the hardness of human hearts. It is necessary to discern the truth in a legal setting, whereas God’s moral law requires truthfulness in all settings—“Simply let your ‘Yes’ be ‘Yes,’ and your ‘No’ be ‘No’” (Mt 5:37 NIV 1984).

Civil law deviates from God’s moral law for very practical reasons.  As Thomas Aquinas argued, human law establishes minimum standards rather than the moral ideal because not everyone is capable of abiding by the ideal.

The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the multitude of imperfect men the burdens of those who are virtuous, viz., that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils. Aquinas, Summa Theologica 1a2ae q. 96 a, 2.

If law imposes too heavy a burden on the population, people will give up on compliance.  Such open resistance to law would create a risk of law falling into disrespect.  It is best that we have what William Stuntz and David Skeel have labeled a “modest” positive law,David A. Skeel, Jr and William J. Stuntz, “Christianity and the (Modest) Rule of Law,” The University of Pennsylvania Journal of Constitutional Law 8 (2006): 809. one that prohibits only the greatest of evils.

Jesus’ comments on the Mosaic divorce law suggest an enormous opportunity (and responsibility) for judges and legislators.  They must prudently and creatively craft laws with eyes fixed on both God’s moral law and on practical reality.  The lawmaker should exercise pragmatic judgment in light of the hardness of human hearts.  The task of the Christian legislator or judge is to identify God’s moral law and to determine how to advance it in light of the current social situation.

Some have criticized modern lawmakers for failing to enact God’s moral law or even the less stringent Mosaic standards into contemporary law.  On the issue of divorce, one American commentator has said: “I believe that our lawmakers are to blame for allowing [no-fault divorce] laws to exist as they do, and not bringing the law of divorce in these United States to the scriptural standard.”A. Cressey, as cited in Joseph S. Exell, “Matthew,” in The Biblical Illustrator (Grand Rapids: Baker Books, 1992), 11:418. But if our understanding of Jesus’ teaching on the law of divorce is correct, the civil law should not necessarily adopt God’s moral law. Human law should reach for the ideal, but should do so in light of its practical impact.

Modern divorce law is an area where Jesus’ model could be applied.  The ideal – permanent union – has not changed, nor has the hardness of human hearts or the danger that a rule prohibiting divorce would yield worse results than a rule allowing it.  In the 1960s and 1970s in the United States, legislatures in almost all jurisdictions moved from a fault-based divorce system to a no-fault system. Divorce today can be obtained easily by either party for any or no reason.  The law provides little or no deterrence to divorce.

The hardness of human hearts may warrant laws that discourage divorce without demanding God’s ideal of permanent marriage.  Thoughtful lawyers, legislators and legal academics wrestle with alternatives to easy no-fault divorce, proposing longer waiting periods (especially for parents of young children), counseling requirements and covenant-marriage legislation (which allows couples to agree at marriage to certain impediments to divorce).

Jesus’ comments regarding the Mosaic divorce law suggest that all who have responsibility for law—including citizens—have a high calling.  They do God’s work as they prudently seek to identify laws that will move us toward God’s ideals in light of the practical problems of  hearts  in the current situation.

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06.  Conclusion: A Woman Caught in Adultery

We conclude our look at Jesus’ view of law with the well-know story of Jesus and a woman caught in adultery.  It suggests many of the themes we have identified in this chapter. Like many stories about Jesus, its meaning is not entirely clear. The earliest and most reliable manuscripts of the Gospel of John do not include this story.  Nevertheless, “throughout the history of the church, it has been held that, whoever wrote it, this little story is authentic” (Leon Morris, The Gospel According to John, rev. ed., New International Commentary on the New Testament [Grand Rapids: Eerdmans, 1995]., p. 779).

At dawn [Jesus] appeared again in the temple courts, where all the people gathered around him, and he sat down to teach them. The teachers of the law and the Pharisees brought in a woman caught in adultery. They made her stand before the group and said to Jesus, “Teacher, this woman was caught in the act of adultery. In the Law Moses commanded us to stone such women. Now what do you say?” They were using this question as a trap, in order to have a basis for accusing him.

But Jesus bent down and started to write on the ground with his finger. When they kept on questioning him, he straightened up and said to them, “Let any one of you who is without sin, let him be the first to throw a stone at her.” Again he stooped down and wrote on the ground.

At this, those who heard began to go away one at a time, the older ones first, until only Jesus was left, with the woman still standing there. Jesus straightened up and asked her, “Woman, where are they? Has no one condemned you?”

“No one, sir,” she said.

“Then neither do I condemn you,” Jesus declared. “Go now and leave your life of sin.” (Jn 8:2-11)

Jesus’ final comment makes clear his rejection of adultery as a moral matter, but what other conclusions might we draw from this story? Does this story teach us anything about law?  The explanation for Jesus’ actions may be one or some combination of the following:

• The priority of the heart. This may have been a teaching moment for the woman’s accusers. Jesus may have been using this occasion to challenge their hearts.   A comment addressed to those who are “without sin” is likely to generate self-reflection in almost anyone.  “Let he who is without sin” stop reading.  (Let the rest of us read on.)  In the Sermon on the Mount, Jesus tells would-be judges that they should first take the plank out of their own eyes so that they will see clearly to take the speck from a brother’s eye (Mt 7:1-5; Lk 6:37-42).  Which of these accusers’ sins came to mind?  He forced them to examine their own hearts and they found themselves wanting. Jesus accepted the outcast who turned to him; he cut to the heart attitude of those who considered themselves good.
• Unjust Enforcement of Law. This may have been a story about the unjust enforcement of law. Jesus is one who brings justice.  The Mosaic Code said that if two people were caught engaging in adultery, both were to be stoned.  Here, the men only brought the woman to Jesus.  They may illustrate what we see in many cultures—a tendency to hold women to strict sexual mores, while “boys will be boys.”  To stone the woman, without the man, would have been unjust to her.  Her accusers very well knew they were not really keeping the law.  In context, Jesus’ statement may have meant: “Any of you who is without sin [in this prosecution] must cast the first stone.”  Again, the accusers found themselves wanting. 
• Justice tempered with mercy. In this case, justice may have demanded the woman’s punishment. It appears, at least, that the Mosaic law did.  Adultery is one of the most damaging acts in which people can engage.  Adultery can easily break up two families and injure two sets of spouses and two sets of children.  If adultery becomes common, it can lead to the destruction of the institution of the family and, ultimately, a country.  But Jesus concluded that in this case, at least, mercy should trump law.
• “Any one of you who is without sin.” If we take Jesus literally (which is the habit of our Anabaptist brethren), this story may prohibit followers of Jesus from participating in the coercion that is a necessary part of human law.  No one is “without sin.”  If Jesus’ example here is normative, his followers might challenge sin through verbal admonition, but not law.
• Jesus filling up the law. It may be that this story teaches us something about the substance of law. Jesus filled up the law; he added what it lacked.  O’Donovan argues that though the Mosaic law permitted an eye for an eye, Jesus’ “fulfilling of the law will mean the end of our thirst for public vindication.”O’Donovan, Desire of the Nations, p. 112. In this story, Jesus may have rejected particularly punitive legal systems.
• Abolition of the death penalty. Finally, Jesus may have concluded that Moses commanded the death penalty for adultery because of the hardness of human hearts but that the death penalty was no longer necessary. At the time Moses gave the law—to a nomadic group of recently freed slaves—it might have been that nothing less would have protected the family. But Jesus might have concluded that in his day the family was on a sufficiently secure footing that the death penalty, at least for adultery, was not needed.

We wish we could tell you which, if any, of the above lessons Jesus intended to teach us in his encounter with the woman caught in adultery.  Jesus does not always explain everything.  We hesitate to make things clear, where Jesus seems to have intentionally left them unclear.  We leave the interpretation of this story to you, as Jesus did.