Legislation is Unnecessary

God is our legislator.

The fundament of American government’s institution is the legislature. Congress makes the law; the executive enforces the law; the judiciary arbitrates the law’s enforcement. In theory, that is the American structure, repeated across fifty one constitutions. It’s the British structure, too, and doubtless other nations have iterated it into their own governments. But America, even apart from those, has a system which accords the most power to the legislature (which is why the legislature’s cowardice and malfeasance is so infuriating). I love my American political heritage, but, frankly, it has a problem here. The legislature is Biblically the least important part of government.

The model of government we find in Scripture, across the Old Testament, never includes a legislature. The closest we get on earth is Moses- but he isn’t really a legislature. Kings make decrees, yes, but these are plainly executive actions, commands that Specific A shall be done, not that B shall result in A in all cases. In fact, the only real legislator we get in Scripture is God Himself, who gives a swathe of laws that don’t seem to cover everything. Yet, if we apply them with consistency and with an eye to the principles in the rest of Scripture, we find that these laws (often called ‘case law’, though they aren’t, really, because they don’t come to us attached to specific cases), these laws provide sufficient basis for all moral question of civil government (2 Tim. 3:16-17). All that’s left is the practical- i.e. doing the plumbing, now that you know you’ve got a duty to steward your house.

As such, the only two branches of government in Scripture are the executive and the judiciary. These two parts, we should note, are not really separate. The king is the executive, leading armies and enforcing justice, and he is the judiciary (1 Kings 3:16-28). The executive, honestly, is hard to distinguish (fitting, given it’s the least delineable part of government), except in wartime. Judges show up regularly, from Exodus 18 to Deuteronomy 17:8-13, where enforcement is not provided for. It seems to me near-certain that law enforcement was a function of the elders leading or commanding the men of the locale, their kin and friends and students, to carry out the law.

No legislature is present because none is needed. God gave them all the laws, and through careful study they have enough for every case in their jurisdiction (no laws of civil government are given for cases outside that government’s jurisdiction except the law of “Don’t you dare” (2 Chr. 26:16-21)). That careful study is required we can see in the appointing of teachers of the law to advice the judges (but not to be the judges, lest church and state unite) in Leviticus 17:9, though this was for the appeals cases, those explicitly too hard for the elders in the towns around, the common folk of the Israelite church (Lev. 17:8).

The result of a human legislature, as Rushdoony notes,¹ is a multiplication of laws where, in truth, none are really needed. God gave us a sufficient law. We ought not to add to it.

Yet, as I have stated before (I forget where and possibly not in public), the Constitution’s position as the fundament of our federal government is an imitation and result of sola Scriptura, the proper reliance on Scripture. Should we throw that law away? Further, are not some laws necessary as purely practical matters, i.e. traffic laws and tariffs and tax law?

Yes and no.

First, while I do not think it necessarily indispensable, in a nation of our scale, it is probably wise to have a written form for the institution of government, in order to clarify it for use. Further, it is wise to have written, explicit requirements for membership in the nation (citizenship), written knowledge of the borders, and some set method of empowering and restraining diplomatic agents, as well as military agents. In these uses, while a written constitution is not absolutely necessary, it is probably beneficial and prudent.

Second, tax law probably requires some standardization, but it should be a minimal effort, easily enshrined in the Constitution (as changing tax regimes are not Christian, unless they change towards the righteous method²). Traffic laws, meanwhile, can come under the same regime as sidewalk courtesy: do something stupid, hurt somebody, and you’ll face the consequences. Follow the unspoken-and-spoken rules, and you’ll generally be good. No government interference is really necessary, except as by the local elders moderating in accordance with the locally understood customs and rules. (The ease of long-distance travel will naturally result in the conventions remaining fairly standardized, such as ‘don’t drive over the speed limit’ (set in accordance with the custom of the area and communicated clearly)). The product is a true common law, unlike our current state of affairs (but that article won’t by out for some weeks- just was CreationalStory.com for it, please).

Conclusion

I read a lot about the law, in theory and in practice, and on a regular basis, I come away frustrated not with the injustice (that I accept as a fact) but with the stupidity. Why need the law be so complicated here? Can men not apply basic principles and come to righteous conclusions? If we simply submitted to God’s law, the vast erection of subtleties and statutes would be swiftly seen as obsolete, unjust, and unnecessary. God gave us a law; it’s time we use it.

1. I read this somewhere in the latter quarter of The Institutes of Biblical Law Volume 2 but cannot find it at the moment.

2. Which I’m still working out.