Neglected Principles of Court Jurisprudence

By Phillip G. Kayser · 2018-5-14

We have witnessed a great deal of abuse by authoritarian churches that do not understand Biblical jurisprudence. We have also witnessed reactionary responses to such abuse by those who have ditched the institutional church altogether. Sadly, this has not solved the problem of abuse - it has heightened it because all checks and balances have been removed. While it is impossible for human courts to always give perfect justice on earth, if God's rules for court jurisprudence were followed in church and in state, a lot of the abusive actions we have seen in years past would be solved. I have not had time to finish this rough sketch of the Bible's rules for jurisprudence, but so many people have asked for it that I decided to post it as a blog, rough as it is.

Court laws violated at Christ’s trials. Do one or more of these violations of Biblical jurisprudence describe you?

  1. The scribes, Pharisees and Herodians repeatedly tried to find Christ guilty of a crime by entrapment (Mark 3:2; 12:13; Luke 6:7; 11:54; 20:26; etc.). Entrapment was something known in ancient times (1 Sam. 28:9), but shunned by the righteous (1 Kings 3:16-28) and condemned in Scripture (Daniel 6; Jer. 5:26; Ps. 141:9-10). Note that in the 1 Kings 3 passage the people knew these were harlots, but citizens had not pressed charges, so they were treated as any other citizen would be. The court had no prejudgment.
  2. The arrest of Christ was arbitrary without any formal accusation (Matt. 21:46; Jer. 37:13; Deut 17:4; 1 Tim. 5:19).
  3. Throughout the trial of Jesus there was a lack of any definite charge since the leaders “sought false testimony” against Him even after the trial began (Matt. 26:59; Mark 14:55). It thus resembled a witch-hunt, or perhaps even a lynching, something condemned in Scripture (Ex. 23:2, 7). Scripture required a formal accusation before a trial could begin (Numb. 35:12 says that the “accused…stands trial”; Job 31:35 says, “let my accuser put his indictment in writing.”)
  4. The Sanhedrin interrogated the accused whereas the accused always had the right to remain silent. (Implied in Num. 35:30; Deut. 17:6; 19:15 and affirmed by Christ’s silence in Mark 15:3-5; Matt. 27:14). The implication in the Old Testament was that the prosecution had the responsibility of bringing witnesses and that the accused did not.)
  5. Christ's first trial was held at night and away from the public eye (John 18:13-14, 19-24). They later had a day trial to legalize what was already decided. But all trials needed to be public (Deut. 16:18; 17:5; cf. historical precedent in Exodus 18:13).
  6. The arrest was made in secret, the charges were made in secret and the trial was held in secret in Caiaphas's house. (cf. Christ's rebuke in this connection in Luke 22:53 and in John 18:20-21.) (Ex. 18:13; Deut 16:18; 21:19; 22:15; 1 Kings 7:7; Imp. Jer. 36:10, 12-13).
  7. Jesus was mocked and beaten prior to trial (Luke 22:63-65). This is a violation of the civil court principle of being innocent until proven guilty (something unique to the Bible). (Deut. 25:1-2; Is. 43:9; Imp. Deut. 17:6; Acts 23:3). Also, there was to be no torture to extract confessions.
  8. There were no witnesses to begin the proceedings. Rather they had to look for witnesses after the fact (Matt. 26:59-63; Mark 14:53-59) According to Biblical law, the witnesses were supposed to bring the case to court, to be the prosecution, and to be involved in the execution if it was a capital crime. (Ex. 23:1-9; Num 35:20; Deut. 17:4-7). If witnesses cannot prove the charge, then judgment has to be left to God (Numb. 5:12-31).
  9. There is no evidence that the false witnesses (Matt. 26:60; Mark 14:56,57) were charged for perjury as mandated by God's law (Deut. 19:18-21; Prov. 19:5, 9; 21:28).
  10. Long before Christ's arrest, at an official meeting of the court, Christ was condemned to death without any of the court proceedings being present, and the purpose of this condemnation was fear of the reaction of the Romans (John 11:47-50). Expediency ruled the day rather than justice, and there was an undue influence of the government upon the decision. (Num. 35:12, 24-25; Deut. 17:2, 4). Nicodemus rightly asked, “Does our law judge a man before it hears him and knows what he is doing?” (John 7:51)
  11. A man previously sentenced to death was not to be scourged, yet Christ was mistreated in this way before and after the trial. (Imp. Deut. 17:5-7)
  12. He was convicted of blasphemy, but when the trial was brought to Pilate, the charge was changed (Luke 23:2). Therefore Christ was crucified for a different charge than He had been condemned for by the Sanhedrin. (Imp. Deut. 16:19-20)
  13. According the Sanhedrin law, the sentence of death could not be passed on the same day the trial occurred. (This can be questioned, but it at least shows the hypocrisy of the court that tried Jesus. Similar hypocricies can be found in modern church courts where principles of jurisprudence are selectively applied.)
  14. According to Sanhedrin law, evidence must be from two informers or from the deposition of the injured party – not from a government official. (Whether this is Biblical or not can be questioned. Again, the only point that might apply to modern courts is the hypocrisy of not judging friends in the exact same way they judge their enemies.)
  15. A witness could not also be the judge. The judge must recuse himself.

You can see from the trial of Christ alone that court procedure is a very important matter and something which we ought to hold dear. The following are some other court procedures that churches and state would do well to follow:

Other Laws Pertaining to Court Procedure

  1. The trial must be public or "in the gates" (Deut. 16:18; 17:5; cf. Deut. 21:19; 22:15; 25:7; Amos 5:12,15; Zech. 8:16). The court is to be neither secretive nor interventionist, but rather to receive appeals from the grass roots. In this case the crime "is found" by citizens (17:2) and "it is told" to the court (17:4). Lawsuit must initiate from the people and the trial must be a public trial (cf. Deut. 21:19; 22:15; 25:7). This provision prevents the civil government from turning the court into an intimidation machine. Everything about this description speaks against secret trials away from the eyes of the public.

  2. There must be thorough investigation (Deut. 17:4). It was not enough to have witnesses. There must be corroboration of the witnesses (17:1-7; 19:15-21). Circumstantial evidence was not enough. So important was a carefully followed record of procedure that even 500 years before the time of Moses, thorough investigation was recorded in writing as a matter of course (Job. 31:35)!

  3. The case had to be established with a minimum of two witnesses, and in some situations, three (Deut. 19:15). Perhaps the provision for the optional three witnesses was judicial discretion when there was doubt.

  4. Accused had the right to face his accusers and question them (Job 40:2; Psalm 50:21; Is. 50:8) There was to be cross examination of the testimony of the witnesses (Prov. 18:17; Deut. 19:18)

  5. Witnesses were required of the prosecution but not the accused (Deut. 19:15). To require witnesses would violate the right to remain silent. Only the accuser was forced to testify.

  6. The privilege of making self-defense was always accorded the accused (Deut. 1:16-17; 17:9; John 7:51)

  7. There was to be no coerced testimony (even Achan whom God had already tried and convicted was only asked to give a voluntary confession in Josh 7:9-26). The teaching that a person is innocent until proven guilty is only found in Biblical religion. No torture or other methods to extort confessions was allowed. Thus Paul rightly protested when he was treated as guilty until proven innocent (Acts 16:37) and the trial of Christ (as much of a Kangaroo court as it was!) was stymied in their attempt to prove Christ guilty. This however does not mean that a person cannot be condemned when he testifies to his own guilt. See for example 2Sam. 1:16 - For David had said to him, “Your blood be on your own head. Your own mouth testified against you when you said, ‘I killed the LORD’s anointed.’ ” But keep in mind that this last example was not a normal court situation for civilians, but was a military situation on the battlefield.

  8. Contempt of court was forbidden and was treated very seriously. When the sentence of the court was ignored with a high hand the maximum penalty could be raised to the death penalty (17:11-13; cf. Ex. 22:28; Acts 23:5). Keep in mind that a Kangaroo court that violates as many laws as the Sanhedrin violated when trying Christ does not deserve to be respected. Jesus refused to answer His accusers because they had obviously already made up their minds.

  9. A right to a speedy trial was guaranteed (Ezra 7:26; Ecc. 8:11; implied in Matt. 5:25)

  10. No trial was to be held on the Sabbath (though Numb. 15:32-36 indicates that arrests could be made on the Sabbath).

  11. The witness was to take an oath before testifying (Ex. 22:10,11). In early America the testimony of an atheist was not allowed since he could not take an oath.

  12. The sentence was to be carried out without interference (such as a parole board) (Deut. 17:11). The only exceptions to this principle related to appeals to a higher court (Deut. 1:15-17; 2 Chron. 19:10; 2 Kings 8:1-6; Acts 25:11-12,21,25; 28:19; 1 Kings 3:1-28), pardons by a king (2 Sam. 14:16; Prov. 25:10) and legal interference by the elders when the government was engaging in tyranny or had violated its constitutional powers (Numb. 35:25; 1 Sam. 14:45; 2 Kings 6:32; Jer. 26:17-24). Also when a lower official proved himself to be incompetent or unjust, the king or a review board of elders could remove him from office (Eccl. 5:8; 2 Chron. 34:33; 1 Kings 2:27; 2 Kings 23:5).

  13. Because of the prohibition of sting operations (see above), diligent searches for evidence could only be engaged in after a citizen had already brought charges (Deut 13:12-14; 19:15-21; Jer. 5:26; implied in lack of it with the harlots in 1 Kings 3, etc.)

  14. Perjury was punished with the same punishment that law would have demanded of the accused had his accusation been true (Deut. 19:18-21)

  15. An oath must be taken by the witnesses (Ex. 22:11). Interestingly, early American jurisprudence took from this concept of the oath the logical conclusion that the testimony of an unbeliever could not be accepted in court as legitimate testimony.

  16. A witness could not refuse to testify at a criminal trial if called to do so. Lev. 5:1 “ ‘If a person sins because he does not speak up when he hears a public charge to testify regarding something he has seen or learned about, he will be held responsible.

  17. Where execution was necessary it was to be public (17:5,13).

  18. “The hands of the witnesses shall be the first against him to put him to death, and afterward the hands of all the people.” (Deut. 17:7; cf. Acts 7:58 where even this protection doesn’t guarantee justice)

  19. There were times when a person had a right to trial by jury or in some fashion be represented “before the congregation in judgment” (Numb. 35:12,24,25; Josh. 20:6; cf. 1 Sam. 14:45?).

  20. Bribery of judges strictly forbidden and a judge’s receiving of a bribe was strictly forbidden (Exodus 23:8; Deut. 16:18-20; 27:25; 1 Sam. 8:3; Psalm 15:5; Prov. 17:23; 29:4; Isaiah 1:23; 5:23; Amos 5:12; Mich. 3:11; 7:3).

  21. Restitution. If a person makes restitution on his own initiative, it was 120% whether to God (Lev. 5:14-19) or to man (Lev. 6:1-7).

  22. If the injured party could not be found then the restitution went to the church (Numb. 5:8).

  23. If confession occurred during trial (ie, he pleads guilty) there is a 200% fine (Ex. 22:9).

  24. If the guilty party perjures himself by pleading not guilty, then there is an additional 20% fine (Lev. 5:1-13; 6:6).

  25. Further gradation of penalties occurred depending on nature of crime and successful retrials etc up to seven fold.

  26. There was a double penalty of 400% or 2 x 200% for falsely accusing someone of theft (Deut. 19:16-19). Thus Zaccheus promised to pay back four fold.

  27. There was a distinction between church courts and civil courts and thus there were "elders of the priests" and "elders of the people" (Jer. 19:1; cf. 2 Kings 19:2).

  28. Within the civil courts there were five basic levels of court jurisdiction, and only the first two levels seem to be regularly employed in proceedings on criminal law, domestic relations, estate law, contract law or tort law: (Thus the courts were not tied up with endless appeals)

    • elders of the town or city which dealt with contracts, family issues, protection of patriarchal interests, and local disputes (Deut. 19:12, 21:3,6,19; 22:15; 25:9; Ruth 4:1-12; etc.). They were also on occasion involved in investigating charges brought against a person from another jurisdiction before handing him over (Deut. 19:12 in context with Numbers 35:12,24-25). They also worked hand in hand with judges on occasion (Deut. 21:2). Rushdoony comments: "…the elders of the city whose functions are seen in the law in reference to five types of law: (1) blood redemption, (Deut. 19:12); (2) the expiation of murder by an unknown culprit (Deut. 21:3); (3) the judgment of incorrigible delinquents and criminals (Deut. 21:19); (4) cases of defamation of virgins (Deut. 22:15); and (5) protection of the family and its local, patriarchal interests. The law in each case requires discernment and judgment but does not permit discretion. The elders of the city thus constitute an extension of family government, protection and defense. Clearly, a very different conception of the city is in evidence here. In the bible, the community is a collection of families with a common faith, and its basic government is one which concerns itself with family life." (Law and Society, p. 657)

    • appointed judges (another form of eldership) which dealt with extraordinary contractual issues (Ex. 21:6), tort law (Ex. 21:6,22; 22:8,9; etc.), capital offenses (Ex. 21:22-23; Numb. 25:5; etc.) and any criminal matters and disputes that couldn't be resolved at the local level (Ex. 21:22; 22:8-9; Deut. 16:18-20; 19:17-18; 25:1-3; 2 Chron. 19:5-10; etc.). Notice that there could be appeal to these appointed judges from the judgments of the city courts: "Whatever case comes to you from your brethren who dwell in their cities, whether of bloodshed or offenses against law or commandment, against statutes or ordinances…" (2 Chron. 19:10). Rushdoony comments: "the judges constitute still another form of eldership. The judges and their courts act in connection with disputes (Deut. 19:17-18; 25:1-3). Matters beyond the jurisdiction or solution of the elders of the city are referred to the judges, who sit with a priest, who provides judgment, not on the case at hand, but on the laws of God pertinent to the case (Deut. 17:8-11). These elective judges (Deut. 16:18-20) have a certain amount of investigative power in the court with respect to the testimony of witnesses (Deut. 19:16-19). In the case of an unknown murderer, the judges acted in concert with the elders of the city (Deut. 21:1ff) and the elders of the country (Deut. 21:2)." (Law and Society, pp. 657)

    • elders of tribes (Deut. 31:28; 2 Sam. 19:11; 1 Kings 8:1; 12:16; 2 Kings 23:1; 2 Chron. 10:16). These elders primarily represented the tribal interest against the national interest, but they were also a part of the appeals process (Deut. 1:15)

    • "elders of the people" or elders of the country whose functions were much broader than judicial (Numb. 11:16; 1 Kings 8:1; 20:7,8; 1 Sam. 3:17; 2 Sam. 5:3; 17:14-15; 2 Kings 6:32; Jer. 26:17-24; etc.). These elders were also a check and balance against ungodly tyranny from a central government. Jeremiah's life was rescued because of the interference of such men (Jer. 26:17-24). Issues of national interest would come before this Sanhedrin. Rushdoony comments:

      "…the elders of the people or the elders of the country. These elders constituted the general government and made up the national assembly, later known as the Sanhedrin, a council of seventy plus the governor, king, or, under the Romans, the high priest acting as a governor. Their creation is cited in Numbers 11:16; their powers included the declaration of war (1 Kings 20:7,8), negotiations by lesser councils with other tribes of Israel (1 Sam. 3:17), and the like. They ratified and made possible a king's rule (2 Sam. 5:3), and were the ruling body (2 Sam. 17:14-15). We find these elders working with Elish against the king (2 Kings 6:32), and, later, interfering in the trial of Jeremiah (Jer. 26:17-24). Thus, the office retained great power even in the times of the monarchy.

      "The functions of the elders of the people were (1) to represent the people in the covenant and in the proclamation and government of the law of God (Ex. 19:7; 24:1,9; Deut. 27:1; 29:9; 31:9; Josh. 8:33; 24:1; II Kings 23:1). They were to see to it that God's law governed the land and the people. (2) The elders of the people appointed a leader, governor, or king (1 Sam. 8:4; Judges 11:5-11). (3) These elders declared war (Josh. 8:10; II Sam. 17:4-15; 1 Kings 20:7). (4) They conducted political negotiations and made pacts and agreements (Ex. 3:16,18; 4:29; Numbers 16:25; II Sam. 3:17; 5:3). (5) They performed some sacred ceremonies, as in the Passover (Ex. 12:21), communion (Ex. 18:12), and in witnessing sacrifices (Lev. 9:1). (6) They acted in times of national crisis as an aid and consenting witness to God's prophet (Ex. 17:5-6), in seeking God's mercy through repentance (Josh. 7:6; 1 Chron. 21:16). It was the elders of the people or of Israel who met in the city square next to the city gate (Deut. 21:19; 22:15; 25:7; Ruth. 4:1ff; Lam. 5:14). Their deliberations were thereby to be open to both God and man." (Law and Society, pp. 657-658) [In my judgment, none of the references in the second to last sentence relate to the elders of the country, but as the texts themselves say, to "the elders of the city." Nevertheless, the general jurisdictional categories Rushdoony has given appear to be correct. The elders of the people often sat in the gate with the king. pk]

    • elders who advised the king (2 Sam. 12:17; 1 Kings 12:6,13; 2 Chron. 10:6,13). Since the king acted as judge on occasion and was involved in pardons, these advisors could have a significant influence. Technically however, they were not a court.

To Be Finished and Refined. This is the rough draft of the introduction. Items yet to be included:

  1. Types of penalties
  2. Limits of flexibility in judicial discretion
  3. Victims rights
  4. Military justice
  5. Types of criminal law
  6. Estate Law
  7. Contract & Business Law
  8. Tort Law
  9. Sanitation and Quarantine Law

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