The following is excerpted and slightly edited from the article “Men In Combat Over The Civil Law: ‘General Equity’ in WCF 19.4” that was published in the Westminster Theological Journal 64:2 (Fall 2002). Co-authored by Craig Troxel and Peter Wallace, the bulk of the material was written by Wallace in November 2000 (see here).
The Westminster Confession of Faith teaches how the old covenant civil law is to be interpreted by the church of Christ when the Confession states in Chapter 19 (On The Law Of God), section 4 that, “To them [the people of Israel] 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.”
The History and Idea of “Equity”
As a term, “equity” is used primarily in the fields of ethics and law, where it connotes or invokes the ideals of justice, fairness, equality, mercy, and evenhanded dealing, as well as the idea of “judgment according to the spirit, rather than the letter of the law.” 3 Equity denotes justice which is administered according to what is right and fair as opposed to what is strictly demanded by the rules of common law.4 In a legal context, equity asks the question, “How do you figure out what to do when the law does not apply?”
The distinction between “law” and “equity” is the distinction between a set of regulations and the higher sense of justice which applies, balances, directs, or restrains those regulations. It is the distinction between a text and its interpretation, significance and commentary. Whereas law is the written text (statute), equity consists in the application of justice to situations that those laws were not designed to handle (interpretation). Thus, “implicit in the idea of equity is the recognition that the creation of a series of laws does not in and of itself guarantee that justice will be appropriately administered. It involves the recognition that laws must be applied existentially, since the application of the ‘the letter of the law’ may in fact distort the real purpose of the law and ignore the individuality and particularity of circumstances.”5
The history of the idea of “equity” can be traced back to Greek and Roman roots, where it was articulated by Plato in his Statesman, developed by Aristotle in his Ethics (the locus classicus for the notion of equity), and upheld by Cicero in De legibus.6 It can then be traced up through the Anglo-Norman and Anglo- American legal systems, in which the idea has been more clearly formulated, for example, by the English barrister Christopher St. Germain (1460–1540). St. Germain, who heavily influenced legal thought into the sixteenth and seventeenth centuries, contended that, because it is impossible to make general rules which cover the varying circumstances of human life, some form of equity is necessary if justice is to be done. 7 This is the backdrop to the English (and, through it, the American) concept of equity, which is collateral to “common law” and seeks to administer more complete or adequate justice in instances or circumstances where statutory law is unwieldy or needs correction.8
The English royal courts organized by King William in the twelfth century sought to administer justice according to “common law.” In the common law courts, if no statute law clearly applied, the judge was required to make his decision according to the nearest applicable law. Little discretion was permitted to the common law judge. Obviously, this frequently led to injustice, especially when the law was not intended to be used for such cases. So if a man believed himself to be wronged, he could appeal to the Court of Chancery, where the chancellor would decide his case.9 The chancellor was not bound by the common law. He was bound merely by equity—a system of principles of justice that enabled him to decide a case when the law did not directly apply. The medieval chancellors “did not regard themselves as administering a system of law different from the common law of England. They were making sure that justice was done in cases where shortcomings in the regular procedure, or human failings, rendered its attainment by due process unlikely. They came not to destroy the law, but to fulfill it.” 10 Common law judges frequently signed petitions asking the chancellor to overturn their own judgment because they recognized that sometimes the strict construction of the law resulted in injustice. Chancellor Thomas More (1529–1533) attempted to convince common law judges to exercise more discretion in order to prevent such situations, but to no avail. Since the common law was entirely dependent upon precedent, the judges insisted that they must enforce the law strictly and leave all matters of discretion to the chancellor (thereby avoiding the unpopularity that came with the exercise of discretion). This led to the development of equity as an entirely separate branch of law.11
The principle of a separation between law courts and equity courts continued for a time in American legal practice. As in Britain, matters of trusts and charities were handled in equity courts. Perhaps one of the most famous American legal disputes that was handled in equity was the 1838 court case which had to determine whether the Old School or the New School had the right to the property of the General Assembly of the Presbyterian Church in the United States of America. Since there was no law that explained what to do when a denomination divided, the case had to be decided on the general principles of justice enshrined in the law (in that case, whether the Old School-controlled General Assembly had followed its own church order). The tendency, however, of the last two centuries has been to collapse law and equity. Today, the British Court of Chancery is not a court of conscience, and, as Baker puts it, “Paradoxically, as equity has hardened into law, so law has been dissolving into something like abstract justice, with a consequent loss of clarity and certainty.”12
The Theological Use of Equity
This legal idea of equity has influenced theological thought as well. The principle of equity may be demonstrated in Solomon’s exercise of discretion when faced with the two women who both claimed the same child (1 Kings 3:16–28). In the absence of any applicable law, Solomon resorted to the exercise of equity. Likewise, our Lord explains the principle of equity when he approves of David’s actions in eating the showbread, contrary to the explicit command of Moses (Matthew 12:1–8; cf. 1 Samuel 21). When accused of violating the Sabbath, Jesus claims that his disciples are no more violating the law by picking grain than David’s men were guilty for eating the holy bread. The law indicated that only the priests were to eat the bread of God (Leviticus 21:6, 22). But David and the priests understood the principle Jesus quoted from Hosea 6:6: “I desire mercy and not sacrifice.” There are times when following the letter of the law will result in injustice.13
The Reformed tradition has prized the concept of equity. In William Perkins’s work on Christian equity, EPIEKEIA, he expressed his concern that the extremity of the law be mitigated by equity.14 Perkins echoes a phrase common in Cicero’s time, summum jus, summa injuria (the extremity of the law is extreme injury).15 John Winthrop, the New England Puritan and Governor of the Massachusetts Bay Company, also distinguished between the formulation of the law and its equity.16 Calvin himself distinguished between the constitution or form of a law, and the equity (aequitas) on which its constitution is based. 17 Calvin said, “Equity, as it is natural, cannot be the same in all, and therefore ought to be proposed by all laws, according to the nature of the thing enacted. As constitutions have some circumstances on which they partly depend, there is nothing to prevent their diversity, provided they all alike aim at equity as their end.” 18 This assumption led Calvin to believe that the Sinaitic judicial laws were not the norm for the nations. Underlying the thought of these men was the assumption that in order for the law to be administered fairly there must be a deeper commitment to justice, because justice must always transcend the law.19
An assumption which has been mutually fundamental to theological and legal minds alike is that equity is actually based upon God’s natural revelation. Calvin, like Augustine, viewed equity as “natural law.” 20 Similarly, Thomas Ridgeley maintained that the judicial laws which promoted Israel’s civil welfare expired when her polity became extinct, except for those laws which were founded in and agreeable to the “law of nature and nations.”21 A. A. Hodge reasoned in the same manner, stating that one must make a “careful examination of the reason of the law” to determine whether it is of a transient or binding nature.22
Francis Turretin explained that this distinction was based on the fact that the Jewish state was a “a type of the kingdom of Christ,” and that therefore the old covenant civil law “is simply abrogated because there is no longer any distinction between the Jews and the Gentiles in Christ.”23 Only those aspects of the law that have moral and universal application may be retained. Further, Turretin warns that “in the laws founded upon the common right or the law of nature, the substance of the precept must be distinguished from its circumstances.”24 Therefore care must be used in applying the judicial laws since their distinctive role as types of the kingdom of Christ so frequently is intermingled with the universal principle. Just because God gave these laws to Israel does not mean that these laws are good for every nation. Turretin lists laws such as levirate marriage, the Jubilee, selling sons and daughters, etc., as those that have no perpetual use. Indeed, Turretin claims that Roman law may often be preferred to Mosaic law because much of Roman law is “derived from natural and common right … [and] can be more suitable to places, times and persons.” 25 In other words, Turretin’s concern is for the equity of the law (which may be found in various law codes), since the particular statutes are no longer binding.
The Idea of “General Equity” in WCF 19.4
This is the prevalent sense of “equity” which would have pervaded the thought of the Reformers and the Westminster Assembly.26 Given the above historical background it is reasonable to assume that the expression general equity, as it appears in WCF 19.4, is a terminus technicus consistent with the concept in English and American jurisprudence.27 The Confession of Faith 19.4 reads: “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.”
This particular article from the Confession teaches that the old covenant civil law has “expired” with the theocratic state of Israel and that it does not oblige any other political body.28 None of Israel’s judicial laws simply transfers over to the modern state. Or to think of it in the context of English common law courts and equity courts, the principle is that we must not approach the Mosaic judicial law as common law courts, but as the court of chancery, through equity. In other words, the church’s first disposition toward the Sinaitic Covenant, as a judicial code, is that it does not apply to nor have any force for any other political entity. The exception to this rule is when the Sinai Covenant’s “equity” can be demonstrated to be required, but then only in its equity, and not as a statute, and then, only its general equity, not the statute’s specific application or a particular correlation. The Confession teaches that it is by this procedure that the church must consider her place with respect to an element of God’s covenant with Moses. Those who wish to argue from the old covenant’s civil code must in some way demonstrate that the “general equity” of any particular theocratic statute is obligatory for their or any civil government. The burden of proof is upon them to do so. To argue for the “general equity” in any particular statute of Israel’s civil code, one must prove that there is a perpetually binding general moral principle which stands behind it. This is why the Confession states that the old covenant civil laws ought not to be applied at face value. The old covenant civil law was unique to Israel and has expired. Its only relevancy to any other commonwealth may be some general equity (a basic principle of justice that is part of "natural" or creational law) if shown to require some present legal provision —assuming of course that there is any general equity which lies behind or under a given old covenant statute.
The Westminster Divines were arguing that the law was judicially outdated. Just as a person would appeal to a court of equity if he believed that the common law was not designed for his particular situation, so also the Westminster Divines appealed to general equity because they did not believe that the “common law” of Moses was designed for seventeenth-century England (or, indeed, any political body in the new covenant era). They presumed that one should not appeal to the civil law of Moses to establish a certain practice for today, unless one could demonstrate that the equity in, under or behind that particular law is an abiding principle for all societies and cultures based upon God’s moral law. To put it another way, the judges of Britain, who would be expected to adhere to the Confession of the Churches of England, Ireland and Scotland, were not expected to view the Mosaic law as the common law of the land. Rather, they were to use the Mosaic law as a guideline to train their consciences in principles of justice and equity, where such principles were clearly taught or demonstrated. As Francis Turretin put it, “Although the best and wisest laws (as far as the state of that people was concerned); were sanctioned by God, it does not follow that on this account they ought to be perpetual. God, from positive and free right, could give them for a certain time and for certain reasons, to some one nation, which would not have force with respect to others. What is good for one is not immediately so for another.”29
The Use of Equity in the Westminster Standards
It is instructive to examine the way in which the Westminster Divines themselves used the judicial laws of the Old Testament in the Westminster Standards, particularly in the Larger Catechism [WLC]. Questions 98–148 examine the Ten Commandments, and the Divines occasionally cite particular judicial laws as proof texts. It should be noted that out of the more than 800 passages that they cite as proof-texts for this section, only 50 or so are taken from the judicial laws of Moses. Here are two examples, which we believe reflect the usage of equity approved by the Westminster Divines. Many of the judicial laws cited are typological laws which point to the kingdom of Christ, and there is no indication that the Divines thought of them as perpetually binding. Rather, they illustrate equitable principles of justice, and those principles are binding.
WLC 128—In forbidding inferiors to rebel against the persons of superiors, the Divines cite Exodus 21:15: “And he that smites his father or his mother shall be surely put to death” (in the same context, cf. Deuteronomy 21:18–21). Not only does equity require a broader application to the relationship between all inferiors and superiors, but equity also dispenses with the death penalty for such offenses. The particular statute is not binding, but the principle of honoring superiors is maintained.
WLC 136—The Divines support the lawfulness of the death penalty as a form of “public justice” by citing Numbers 35:31, which requires that all murderers be put to death. This is one of the rare cases where the judicial law of Moses is cited as completely applicable in the new covenant era, but not because it is an old covenant civil law. It is preceded by Genesis 9:6, which established the death penalty for murder for all humanity, not just Israel (although the Divines did not think that the magistrate should enforce the death penalty for every Mosaic capital crime).
The Confession’s understanding and use of equity clearly demonstrate that since the judicial law of Moses does not apply directly to modern nations, one must draw no more than general principles of equity from it in order to instruct one’s conscience in the whole Word of God. No law, not even the law of Moses, was intended to cover every possible situation. Even Solomon found that the statute law of Moses did not address every situation, but used an unorthodox method to determine the rightful mother (1Kings 3:16–28). Indeed the chief function of the judicial law in the age of the church is to point to principles of equity that in their typical function are to be practiced by Christians in the Kingdom of Christ, or in their general equity by all in the kingdoms of men.
How Shall We Then Judge?
Israel’s now fulfilled and obsolete old covenant, and expired old covenant civil law never did and does not now oblige any other political entities. There are only two alternatives for how one deals with hermeneutical issues over the old covenant’s civil law. Either one erroneously assumes that the old covenant civil law specifically applies to other political bodies, or one agrees with WCF 19.4 and assumes that the old covenant civil law has expired, and entails no obligation outside the old covenant, unless (not to the old covenant civil law itself, but) to some demonstrated general equity. One looks for either “a law's applicability” or some possible “general equity.” These are mutually exclusive approaches. All will not always agree upon whether there is some general equity. All will not always agree upon what a given general equity requires. Knowing this, however, the Assembly desired that by including WCF 19.4 all parties who hold to the Westminster Standards as subordinate standards at least would agree to a common method by which they could seek to reconcile their differences —and that hopefully with Christian equity.35
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Notes
3 J. A. Simpson and E. S. C. Weiner, “Equity,” in The Oxford English Dictionary (2d ed.; Oxford: Clarendon Press, 1989), 5:358. See also Milton R. Konvitz, “Equity in Law and Ethics,” in Dictionary of the History of Ideas (ed. Philip P. Wiener; New York: Charles Scribner’s Sons, 1973), 2:148; Dan B. Dobbs, Handbook on the Law of Remedies: Damages, Equity, Restitution (St. Paul, Minn.: West, 1973), 24.
4 Henry Campbell Black, “Equity,” in Black’s Law Dictionary (St. Paul, Minn.: West, 1979), 484.
5 Sinclair B. Ferguson, “An Assembly of Theonomists? The Teaching of the Westminster Divines on the Law of God,” in Theonomy: A Reformed Critique (ed. William Barker and W. Robert Godfrey; Grand Rapids: Academic Books, 1990), 330.
6 See Konvitz, “Equity in Law,” 148–50; and Ferguson, “Assembly of Theonomists,” 330.
7 Theodore F. T. Plucknett, A Concise History of the Common Law (Boston: Little, Brown and Company, 1956), 279.
8 Black, “Equity,” 484.
9 Other equity courts included the Mayor’s Court in London and courts of request throughout England.
10 J. H. Baker, An Introduction to English Legal History (London: Butterworths, 1979), 87. See Konvitz, “Equity in Law,” 152; Simpson and Weiner, “Equity,” OED 5:358; and Dobbs, Handbook on Law, 24.
11 See Baker, English Legal History, 91.
12 Ibid., 99.
13 It should be noted that Jesus is also making a point about himself as the authority-bearing Messiah, so the references to other anointed ones (priests and David) need to be seen in that light.
14 William Perkins, EPIEKEIA, or a Treatise of Christian Equity and Moderation, in Puritan Political Ideas, 1558–1794 (ed. Edmund S. Morgan; New York: Bobbs-Merrrill, 1965), 61.
15 Ibid.
16 John Winthrop, “A Model of ‘Christian Charity’,” in Puritan Political Ideas, 124.
17 Guenther H. Haas, The Concept of Equity in Calvin’s Ethics (Waterloo, Ontario: Wilfrid Laurier University Press, 1997), 30, 109.
18 John Calvin, The Institutes of the Christian Religion (ed. John T. McNeill; trans. Ford Lewis Battles; 2 vols.; LCC; Philadelphia: Westminster Press, 1960), 4.20.16. See also 2.8.47; 3.23.9; 4.5.2; 4.12.23; 4.13.17; 4.20.4; 4.20.11; 4.20.15; 4.20.16; 4.20.20.
19 See Winthrop, “A Model of ‘Christian Charity’,” 151. This is not dissimilar to the Scripture’s affirming that God rules and judges the world “with equity” (Pss 9:8; 75:1; 96:10).
20 Haas, Concept of Equity, 30.
21 Thomas Ridgeley, Commentary on the Larger Catechism (1855; repr., Edmonton, AB: Still Waters Revival Books, 1993), 307–8.
22 A. A. Hodge, The Confession of Faith (1869; repr., Edinburgh: Banner of Truth, 1983), 254–56.
23 Francis Turretin, Institutes of Elenctic Theology (ed. James T. Dennison; trans. George Musgrave Giger; 3 vols.; Phillipsburg, N.J.: Presbyterian and Reformed, 1994), 11.26.3.
24 Ibid., 11.26.4.
25 Ibid., 11.26.10.
26 Ferguson, “Assembly of Theonomists,” 330. See also Haas, Concept of Equity, 30. One of the Scottish commissioners to the Assembly, Robert Baillie, argued vigorously against the Brownists (and some of the New England Puritans, who tended toward trying to re-institute some of the biblical penology) in his A Dissuasive From the Errors of the Times (London, 1646), 31–32. Baillie contended for a very restricted sense of equity, as did Samuel Rutherford who argued by analogy: As Paul says, “ ‘He that is circumcised becomes debtor to the whole law,’ surely to all the ceremonies of Moses’ law; so I argue, a pari, from the like, he that will keep one judicial law, because judicial and given by Moses, becomes debtor to keep the whole judicial law, under pain of God’s eternal wrath” (Rutherford, Divine Right of Church Government Vindicated [London, 1646], 493–94).
27 Ferguson, “Assembly of Theonomists,” 330.
28 The Reformed threefold distinction of the Law also asserts that the ceremonial law is abrogated because it has been fulfilled in Christ (WCF 19.3), and that the moral law is perpetually binding as it is “summarily comprehended in the ten commandments” and as they are summed up by the two great commandments (SC 41, 42; LC 98, 102, 122). In recent years there has been some question as to the validity of the threefold distinction. We are not debating this point, but attempting to explicate the traditional Reformed understanding.
29 Turretin, Institutes, 11.26.9.
31 Yet the Divines do not merely reproduce the Mosaic law of marriage, plainly rejecting any ongoing relevance for the law of levirate marriage. See Barry G. Waugh, “Revising the Westminster Confession: The Case of Near-Kin Marriage,” WTJ 63 (2001): 65-85.
34 It is our claim that the old covenant civil law was intimately bound up with the unique calling of Israel and the unique status of the Promised Land. Therefore the New Testament itself tends to see the civil law as pointing us to Christ and his kingdom (cf. 1 Cor 9:9–11 referring to paying ministers and 1 Cor 5:13 and 2 Cor 13:1 referring to church discipline). The usage of the civil law in the proof-texts for the Westminster Standards supports this approach.
35 The authors thank Messrs. George W. Knight III, Robert B. Needham, and Jack J. Peterson, who have studied this issue diligently and have helped to refine our views, even where we may, on some points, continue to disagree.