I recently wrote a critique of Theonomy over at Mere Orthodoxy. Lots of feedback came my way, some constructive, most not. What seems to have been lost on many readers is that, first and foremost, my critique was aimed at the critics. I want to take Theonomy seriously and my criticisms to push them to better explication of their ideas. Finding the majority of recent criticisms of Theonomy either unfair or unthoughtful—when it comes to mainstream media, simply bonkers—I tried to critique Theonomy in the way it should be: by getting straight at the central theonomic question, whether the Mosaic judicial law binds all governments, and, relatedly, whether the Old Testament presents the sufficient blueprint for society.

I argued in the negative, appealing to the classical division of law found in Thomas Aquinas, later mediated through Franciscus Junius (and many others). My case, however successful, was not intended to be exhaustive. I appealed to Junius, in part, because Theonomists, past and present, often try to rope the tradition in with themselves, not the other way around, mind you. I have encountered this repeatedly in pop-Theonomist materials: everyone, alive or dead, is either a conscious or an unconscious Theonomist. And certainly, they claim, the best reformed minds concur with them, as does the confessional tradition. (Joe Boot, in his The Mission of God, situates the New England Puritans within Theonomy, an erroneous opinion. This is accomplished almost entirely via strategically chosen isolated quotes and poorly selected and misread secondary sources. Newer Theonomists like James White often credit Boot for their adoption of the idea.)

This maneuver—framing questions (and answers) for the past in ways never then encountered so that it suits you—itself is suspect at best and unintelligible at worst, and always proves futile, in my experience, to the chagrin of Theonomists. Whatever one is going to do with the tradition, with historical theology, it must be dealt with on its own terms, terms often foreign to us and not created with our present questions in mind. Rejection of this restraint leads to misinterpretation. Beyond critiquing the critics, this was the other subtle point I intended to at least allude to. (It was lost on many, which probably means that the allusion was a bit too elusive.)    

For instance, Gary North, the last of the Theonomist patriarchs, has argued that Calvin should be classified as a “sixteenth century Theonomist” because of his “commitment to the requirement of obeying God’s law” and his “social theory,” which is to say (for North) a Biblical ethical theory and a “covenantal view of history.” Already, in framing the case, North is performing the questionable historical maneuver mentioned above. In arguing this, North relied on Calvin’s sermons on Deuteronomy 27-28 (republished by James B. Jordan as The Covenant Enforced). North criticized others for denying Calvin’s theonomic pedigree based on the Institutes, an evaluation that was only possible, said North, if the whole of Calvin’s thought was neglected. Yet, North did not follow his own rule to prove it. He apparently thought two sermons alone made the definitive case for Calvin the Theonomist. (It is strange that he did not go to Calvin’s Commentaries but perhaps he already knew he would find no support there.)

Furthermore, North weaved through said sermons without locating an explicit affirmation by Calvin of the endurance of the Mosaic judicial law—the key theonomic question, by North’s own admission—preferring rather to cast the presence of “respect for the Old Testament law,” “covenantal cause and effect of history,” a providentialist reading of that history, and premillennial eschatology in Calvin as sufficient evidence of Theonomy. To be clear, none of these attributes are particularly unique to Calvin, nor good indicia of Theonomy. Political Hebraism, at the time, was common and evidenced nothing per se theonomic. And “respect” for the OT law would have applied to any Reformer almost without exception and should apply to any Christian.  

The real question posed by Theonomy, however, is whether “respect” for the OT law must or does translate into belief in the universal and perennial binding force of the OT judicial law. (It continues to shock me how often the central question is sidestepped by all parties involved.) Calvin clearly answers this question in the negative. Myriad prooftexts demonstrate this. (Contemporary Theonomists themselves acknowledge that Institutes 4.20.14 rejects Theonomy, to speak anachronistically.) Despite what Joel McDurmon might claim, I do not believe any major early modern Reformed figure backs Theonomy up. Their only true sixteenth century supporters would have been the Anabaptists. (As a side note, McDurmon might have been ostracized by the ever-fissiparous Theonomy clique, but he is, to my mind, the clearest and unapologetic apologist for Theonomy.)

All that being said, and as mentioned already, I have a bit of a soft spot for the Theonomist mood, dogged determination, and premillennial confidence—see John Ehrett’s excellent essay on some of this. As I have said before, Theonomy’s resurgent popularity speaks to larger trends and insecurities in American Protestantism, ones that should not be impulsively sloughed off. For this reason, Theonomists deserve pushback more thorough and thoughtful than isolated citations or dismissive quips.  

If Theonomy is really to be addressed by Protestants, what needs to be provided is more than proof-texting—simple “yes” or “no” answers—but rather a look at the structure, implications, and assumptions of relevant portions of historical reformed thought to show the basic incongruity of Theonomy therewith.  

To illustrate the direction in which I think things should go, we might, taking our cue from North, look at a sliver of Calvin’s thought on law and social theory. There we can see that even if Calvin had wanted to answer the Theonomic question in the affirmative, the structure of, and assumptions behind, his thought would not have allowed it. This is apparent from the very language employed by Calvin to discuss socio-political order and law.

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In 4.20.14, Calvin addresses law within the Christiana politia in discussing the role and power of magistrates. (Calvin’s early definition of a commonwealth was “an assembly or society of men associated by law.”) Magistrates were ministers of God and administers of the law. Contra both Anabaptists and Lutherans, who had relegated magistracy to the maintenance of outward or civil morality only, Calvin aimed to, as Harro Hӧpfl put it, “re-sacralize the magistracy,” (p. 46), and diminish “the distance between magistrates and the godly” (p. 52), and accordingly referred to it as “sacrum ministerium,” often using “ministerium” and “administratio” interchangeably.

Not only were magistrates to maintain civil justice and order, but they were also expected to prevent idolatry, blasphemy, and other “public offences against religion,” and, to some degree, support the church (4.20.3). Calvin insisted that his providing the magistracy with a religious role should not disturb his readers. Indeed, “care of religion as the principal concern of a commonwealth was reckoned by Calvin as a thing understood by natural men.” (p. 150). Magistrates were not a strictly necessary evil, but a gift from God, instilled with a legitimate and venerable office and, therefore, authority. In truth, Calvin’s view was the recovery of a conventional position only recently (and momentarily) discarded by some of his fellow Protestants. (But already we have butted up against the implicit libertarianism of Theonomists.)

Per Hӧpfl,

“There was nothing specifically evangelical [i.e., Protestant] about regarding it as part of the ruler’s office to maintain the public form of religion: all the rulers of Europe subscribed to this view. What was specifically evangelical was that Luther’s though gave Christians grounds for uneasiness about it. Calvin on the contrary refastened the bonds which Luther had, perhaps inadvertently, begun to loosen.” [p. 53].  

This move was also a frontal assault on what at least passed for Roman Catholic convictions at the time. The Roman clergy had allegedly usurped civil authority rendering it impotent, tearing asunder God’s design for the two potestas or two regiments of the Christian commonwealth.  

On the other side of the equation, as mentioned already, Calvin was combating what would now be called “theonomic” and Biblicist tendencies of Anabaptists, who fiercely maintained that the entire Mosaic law alone was sufficient to govern Christian societies. In the French reformer’s own time, Münster had already become a tale of woe.

This two-prong assault took some doing, however.

Calvin, of course, adopted the age-old distinction between the forms of Mosaic law, the moral, judicial, and ceremonial—which contemporary Theonomists do not seem to per se reject—affirming that only the moral law—a summary of the natural law handed down in the Decalogue—was perennially binding. But Calvin’s case goes further than this, and the real issue with Theonomy is not the tri-fold division of Mosaic law just mentioned. Rather, as I have already argued, the nature of law itself.  

Calvin distinguished between the equity (aequitas) and constitution (constitutio) of law with the latter being more akin to lex than ius; that is, referring more plainly to statutory, positive law enacted by a legislative body than moral law generally (ius). “A lex is a written ius by the plebiscites, decrees of the senate, decisions of princes, edicts of magistrates, and prudential deliberations.” Or so Justinian’s Institutes (1.1.2) tell us—which Calvin (and others of the second-generation reformers like Junius) integrated into his political theory vocabulary. The authority of lex, as an enacted law and, therefore, composite human law, is derived from two sources: its adherence to the natural law or equity (transcendent principle), and its procession from a legitimate body of earthly governance (earthly principle).

Intuitively we can recognize that statutes are particular and positive instantiations or applications of more general law. This is true even in our own legal system. Constitutional principles get worked out (usually) first through precedent and then (often) applied and expanded through statutory formulations as practical needs arise. Blackstone referred to this as the “declaratory” function of law “whereby the rights to be observed, and the wrongs to be eschewed, are clearly defined.” But the natural law undergirding these declaration neither ebbed nor flowed based on declaration; their strength is not determined by human law.

And that’s just it. The constitutio depend, in part, on circumstances (4.20.16), whereas aequitas does not. Equity is the hallmark of a true law; it must always be the end in view. Positive laws must exude equity to be valid but that is not to collapse the two distinctions into one criteria or category. It is merely to establish equity as the governing force. All laws must be agreeable to the natural law, the higher law, or equity to be just laws. This is a timeless truth reiterated by Augustine and Aquinas all the way down to Martin Luther King, Jr. An unjust law is no law at all.

Returning to Calvin:

“[A]s ceremonial laws could be abrogated while piety remained safe and intact, so too, when these judicial constitutions were taken away, the perpetual duties and precepts of love could still remain.”

Here, Calvin is analogizing between the ceremonial and judicial law: the piety and equity (or “love”) undergirding them is not altered according to the human law instantiations of them. Indeed, it is difficult to discern what the basis of any positive law is if this is not true. The implications of this insight lead Calvin to his conclusions:

“[E]very nation is left free to make such laws as it foresees to be profitable for itself. Yet these must be in conformity to that perpetual rule of love, so that they indeed vary in form but have the same purpose [i.e., the basis of the ius gentium or ius commune].”

This is plain, said Calvin,

“if in all laws we examine these two things: the constitution of the law, and the equity on which its constitution rests. Equity, because it is natural, cannot but be the same for all, and therefore, this same purpose ought to apply to all laws, whatever their object. Constitutions have attendant circumstances upon which they in part depend.”

But this does not matter, so long as they “press toward the same goal of equity.” And then,

“It is evident that the law of God which we call moral, is nothing else than the testimony of natural law, and of that conscience which God has engraven on the minds of men… Hence it alone ought to be the aim, the rule, and the end of all laws.” [4.20.16].

It is because of this conception of human law (constitutio) that Calvin declined to outline a legal regime for Christian polities. Any attempt to do so in the abstract would be to neuter the effectiveness (i.e., responsiveness) of said hypothetical legal regime to circumstances, which would thereby necessarily preclude equity and validity in the same regime. Laws formulated in the abstract cannot righty account for equity because they cannot consider circumstances. In part, the theory of the common law tradition is meant to address this dynamic. At the same time, Aquinas spoke of the advantages of legislatures, which can survey an array of circumstances, over judges which are confined to the facts of a particular case. Either way, the pursuit of equity is in play.  

Calvin answered the question of polity, governmental form, in the same way. Albeit he favored a mixed regime—elements of monarchy, aristocracy, and democracy, each having their merits and demerits—he made no attempt to define the ideal polity in certain terms just as he did not construct an exemplar legal code. Like law, so long as a polity is conformed to its God-ordained final end (i.e., the common good and God’s glory) and can perform its necessary functions, it is valid and left up to human determination (determinatio) based on prudent evaluation of circumstance. Any abstract discussion of polity was allergic to specificity because “the ratio [reason] of the discussion depends on circumstances.” (4.20.8).

Imbedded in this view was a high trust of providence, viz., that different people in different times, insofar as they were Christians, would be gifted Christian prudence by God to navigate the challenges of life inherent in living together unto God’s glory and mutual good of the populace. Now, in this light, examine the Westminster Confession 1.6:

“there are some circumstances concerning the worship of God, and government of the Church, common to human actions and societies, which are to be ordered by the light of nature, and Christian prudence, according to the general rules of the word, which are always to be observed.”

We might substitute “general rules” for “general equity” in 19.4. The meaning is functionally the same and precludes the historical (and linguistic) gymnastics performed by Theonomists on the “general equity” point, a phrase Calvin also employed.

In the context of law and that of governmental polity—both the province of civil authority—the same logic is at work in Cavin. Immutable principles and indispensable ends must be accommodated to mutable circumstances via the determination (determinatio) or application of the general principles of transcendent law to the needs of particular circumstances. (See also Junius, Mosaic Polity, Theses 22-30.)

Again, this same logic is present in his discussion of church polity—the reasoning animating both civil and ecclesiastical polity being nearly identical. Hӧpfl summarizes:

“[Calvin’s] overriding assertion, needed to combat the authority of Rome, is that ‘laws by which the order of the church is shaped’ cannot bind the conscience. In other words, detailed provisions for worship and ecclesiastical order are not laid down in Scripture, but may and must be made by men to suit the circumstances.” [p. 38].

The same basic argument is prevalent in later figures like Edward Stillingfleet, and to some extent Richard Baxter (one of Stillingfleet’s many opponents), as well.

Not only does Calvin recognize a place for human, positive law apart from the Mosaic judicial code, and not only does he reject the perpetual validity of the Mosaic judicial code, but he affirms what Junius did (and what I have previously argued), viz., that the Mosaic judicial code belongs to the category (or genus) of human law;

“For utterly vain is the boast of some, that the law of God given through Moses is dishonored when it is abrogated and new laws preferred to it… For the Lord through the hand of Moses did not give that law to be proclaimed among all nations: but when he had taken the Jewish nation into his safekeeping, defense, and protection, he also willed to be a lawgiver especially to it: and–as became a wise lawgiver–he had special concern for it in making those laws.”

The Mosaic judicial law was the result of God, being one of proper authority and care for the community, stepping into the role of legislator. He enacted laws responsive to circumstance that reflected aequitas for a particular nation. By definition such law belonging to the human law genus cannot be universal beyond the imbedded correspondence to the natural law.

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The real point is that Calvin’s view of law and polity, by his vocabulary and conceptual framework, precludes theonomic conclusions. Even if Institutes 4.10.14-16 had not so explicitly cut against Theonomy–an unavoidable fact–the assumptions standing behind Calvin’s thought, the conceptual tools he used–signaled even by the words constitutio and aequitas–and his conclusions adjacent to the theonomic question make North’s Theonomist Calvin a hard sell. For Calvin, law and polity are handled similarly and both, by the design of Providence, infer and require human determinations according to prudence and circumstance in light of the natural law (aequitas).  

This is an admittedly abbreviated discussion of such a prolific writer as Calvin. It is unlikely to satisfy Theonomists. But this is the direction us opponents of Theonomy need to take the discussion, if for no other reason than that it forces us to investigate the sources more deeply on the questions of law and socio-political order—a area of study in which Protestants are almost fatally behind the eight ball. 

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