This section of the Westminster Confession [19.4] does not spell out how to apply each judicial law. Rather, it gives us a hermeneutical principle. It gives us a question to ask when we come to apply a judicial law to our modern context.
“To them also, as a body politic, he gave sundry judicial laws, which expired together with the state of that people, not obliging any other now, further than the general equity thereof may require.” (Westminster Confession of Faith, 19.4)
This has been a section of the Westminster Confession which has met with differing interpretations, especially in more recent decades. In particular, it has become central to the question of whether “theonomy” is within the boundaries of the Westminster standards. It also was a point of contention when in 2001 the 68th General Assembly of the OPC declared that “the use of women in military combat is both contrary to nature and inconsistent with the Word of God.”1 A protest to this action objected to this declaration in part because it argued “largely from Old Testament narrative and civil law,” citing 19.4 of the Westminster Confession as a reason why this biblical support was “highly dubious.”2 In my own experience, talking to people and reading books on the Westminster Confession, there is a bit of confusion as to the meaning of this paragraph about the judicial laws.
I take this paragraph of our confession to mean that the judicial laws of Moses are not obligatory for any other nation further than their general equity may require. The reason is that they expired with the state of that people. Yet this also means that these laws do oblige and bind modern nations to the extent that their general equity requires their observance. I submit these initial observations:
It is incorrect to say that they only have relevance for the church, as the new covenant Israel. While Paul does apply judicial laws to the church, this does not mean they no longer apply in some sense to the political sphere. 19.4 clearly states that these laws have a certain binding relevance for states.
It is also incorrect to say that equity (i.e. justice or fairness) has replaced the judicial laws in civil affairs. Rather, the Confession teaches that the judicial laws themselves are binding to an extent based on their connection with general equity (universal principles of justice).
The reason given for this expiration is the expiration of the state of Israel. We cannot go back to the original context of ancient Israel. The reason that these laws in their specific form and circumstances have expired is because the original context no longer exists. Thus, to apply these laws today, one must discern what was grounded in the unique position of ancient Israel and what was grounded in the moral law.
The general equity of the judicial laws refers to the universal and moral basis for those laws, in contrast to other factors such as Israel’s unique position in redemptive history and the context of ancient times. This general equity was thus related to the concept of the moral or natural law.
The Use of General Equity in 17th Century Reformed Theology
Thomas Shepherd, a Puritan minister who had moved to New England in the 1630s, described to what extent the judicial laws apply to all nations in this way:
The learned generally doubt not to affirme, that Moses judicials binde all nations, so farre forth as they containe any morall equity in them, which morall equity doth appeare, not onely in respect of the end of the law, when it is ordered for common and universall good, but chiefely in respect of the law which they safeguard and fence, which if it bee morall, it’s most just and equall, that either the same or like judiciall fence (according to some fit proportion) should preserve it still, because ’tis but just and equall, that a morall and universall law should bee universally preserved. 3
In other words, these laws bind nations to the extent that they contain moral equity. This moral equity can be discovered by looking at the end of the law (is it universal or particular) and the kind of law that it “fences” (is it moral or ceremonial). If it is based on a universal and moral law, then the judicial law (or its equivalent) is also universal and binding.4
It should be noted that Shepherd got this idea from the “learned,” and one of the two learned men he cites by name is Johannes Piscator (1546—1625), a German Reformed theologian whose writings were studied in England and Scotland as well as on the Continent. Piscator argued in an influential appendix to his commentary on Exodus that
the magistrate is obliged to those judicial laws which teach concerning matters which are immutable and universally applicable to all nations, but not to those which teach concerning matters which are mutable and peculiar to the Jewish or Israelite nations for the times when those governments remained in existence. 5
He then argued for this thesis by seven proofs, defended it against twenty-two objections, and applied it as an example to the case of theft.