Reformed Theology has always held that God’s Law is best understood as having a threefold division, some being moral, some ceremonial, and some judicial. Chapter 19 of the Westminster Confession explains this threefold division. The moral law, summarily comprehended in the 10 commandments (WLC 98), is rooted in God’s character as well as the created order and is perpetually binding and immutable; the ceremonial law was explicitly abrogated in the New Testament since it was only intended to be temporary, being types and shadows of the coming Messiah and regarding the distinction of Jews and Gentiles as well as the specific regulations on old covenant worship. The judicial law is best understood in the following three ways:
1. Some judicial laws are tied to the ceremonies and were unique to Israel; these have expired with the body politic of Israel in AD 70 (e.g. Num. 18:20-21).
2. Some judicial laws are tied to the moral law, and are not unique to Israel, and therefore cannot be abrogated or expire, being rooted in natural law and obliging unto all mankind (e.g. Lev. 20:10).
3. Some judicial laws are a mixture of unique to Israel and moral laws; these only oblige insofar as they are of common right, or of general equity (e.g. Deut. 22:8).
New England Puritan minister, and one of the founders of Harvard, Thomas Shepard, explains these divisions of the judicial law thus:
The judicial laws, some of them being hedges and fences to safeguard both moral and ceremonial precepts, their binding power was therefore mixed and various, for those which did safeguard any moral law, (which is perpetual) whether by just punishments or otherwise, do still morally bind all nations…the ceremonials being plucked up by their roots, to what purpose then should their fences and hedges stand? As, on the contrary, the morals abiding, why should not their judicials and fences remain? The learned generally doubt not to affirm that Moses’ judicials bind all nations, so far as they contain any moral equity in them, which moral equity doth appear not only in respect of the end of the law, when it is ordered for common and universal good, but chiefly in respect of the law which they safeguard and fence, which if it be moral, it is most just and equal, that either the same or like judicial fence (according to some fit proportion) should preserve it still, because it is but just and that a moral and universal law should be universally preserved.
Theses Sabbaticae, thesis 42.
He goes on to explain that “the power of the civil magistrate in matters of the first table” is a “fence and safeguard set about moral commandments” rather than being a fence around the ceremonial law, and is thus just as abiding as sins against the second table of the law.
Thomas Edwards (1599–1647), in A Treatise Against Tolerance, explains that the judicial law may be considered in three ways,
And for the better understanding and proving that the Judicial lawes under the Old Testament are still in force, I shall lay down two or three distinctions. 1. The judicial law may be considered, so far as concerns the distinction of the Iewes from the Gentiles, and the typical signification of the kingdome of Christ; or only so much as belongs to the forme of Civil government. Now the judicial law, according to the first acception, is absolutely and simply abrogated; but, secundum quid, in part and some kinde only, in the latter: that is, Whatever was in the judicial law of particular proper right peculiarly concerning the Jewes, as of inheritances not to be transferred from one Tribe to another; of the Tribe of Levi having no inheritance among the other Tribes, Numb. 18. 20, 24. of the emancipation of an Hebrew servant or handmaid in the seventh yeer; a mans marrying his brothers wife, and raising up seed to his brother; the forgiving of debts at the Jubile; marrying with one of the same tribe, with other such like, all of this kind is ceased; But what was of common right, common to other Nations with them, according to the common law of nature; of which sort are lawes concerning the punishment of Moral transgressions, and other such; that all remains, and is in force.
He then cites Piscator, Bullinger, and Alting to support his position, and continues:
2. The Iudicial lawes may be considered according to their substance and equity, or according to many accessories, circumstances, forms, & manner of them. Now though the Magistrate under the Gospel is not bound unto these lawes simply, that is, to every circumstance and particular of them for form, manner, time and place; as for example, not to the same kinds and formality of punishments set down in those lawes; for those forms are accessions of the law; and therfore out of the nature of persons, times, places, and constitution of common-wealths, mutable: Yet he is bound to the substance & equity of them, so as not to derogate from the right of those lawes.
He cites Cartwright, Beza, Tremellius, and Junius, and then continues:
Thirdly, these Lawes may be lookt upon as containing doctrine from God of punishment, i.e. that those who seduce, blaspheme God, &c. be restrained, yea and by death in severall cases, or else as in their latter according to the great rigor and severity expressed in them…Now though to the degrees and measures of punishment, the severity and utmost rigor the Magistrate is not now tied, yet to the thing in cases of Idolatry, seduction, false prophesying, speaking lies in the name of the Lord he is bound, and in some cases of grosse and high Idolatry and Blasphemy committed presumptuously, to inflict capitall punishment.
Again he cites Beza, Calvin, Cartwright, Tremellius and Junius, Bullinger, Zinchius, Peter Martyr, Heinrich Alting, and Piscator as supporting his position that certain judicial laws are still in force.
Additionally, Edwards explains how the judicial law is an “appendix” to the Decalogue:
The Iudiciall Law differs from the Decalogue, the Law of the ten Commandements, in this, that whereas the Decalogue comprehends in a few words all righteousnesse and equity, in all kind of duties to God and man, the Iudiciall explains only that part of righteousnesse and equity which stands in those things of which judgements are appointed; and therefore seeing the judicialls prescribe the equity of judgements which is a part of the Decalogue we must be bound to that as we are to the rest of the Decalogue, viz. so farre as they containe a generall equity though we are not tied to the formes of the Mosaicall politie; Now Christ saith, Matth. 5. 17. he came not to destroy the Law, but to fulfill it; which words are comprehensive of the Judiciall Law as for the substance a part of the Moral Law, (the Iudicial being indeed an Appendix and a more particular explication of that part of the Morall Law concerning matters of Iustice and judgement) and therefore must be understood by Christ to be established.
Theodore Beza also considers equity in judgements to be part of the moral law:
Although we are not bound to the formulae of the Mosaic polity, yet when those judicial laws prescribe equity in judgments, which is part of the Decalogue, we – inasmuch as we are not bound to them to the extent that Moses prescribed them to one people – are yet bound to observe them to the extent that they embrace a general equity, which must prevail everywhere. For the ordinances are apparent for this reason, not because they have been ordained by Moses upon one people of the Israelites, but because they have been ordained by nature upon the entire nation of men.
De Haereticis A Magistratu Puniendis Libellus, 1554, pg 222.
Johann Heinrich Alting (1583–1644), a delegate to the Synod of Dordt, likewise understands a division in the types of judicial laws:
The judicial law is entirely abrogated so far as it concerns the distinction of Jews from Gentiles, and the typical signification of the kingdom of Christ. However, as far as it concerns a form of civil government, it is abrogated in some particular aspects. For whatever was a particular proper right, such as peculiarly concerned the Jews, of which sort was the law concerning the office of the Levites, as another concerning inheritances not being transferred from one tribe to another, all of this kind have ceased. But insofar as it concerned common right, enacted according to the law of nature for all men together, of which sort are the laws concerning the punishments for crimes, these same judicial laws all remain.
Scriptorum Theologicorum Heidelberensium Tomus Primus, continens Locos Communes (1646); cited from Disputations on the Judicial Laws of Moses by Johannes Piscator, translated by Adam Brink.
William Gouge explains the relation of common equity to the moral law:
There were other branches of the judicial law which rested upon common equity and were means of keeping the moral law: as putting to death idolaters and such as enticed others thereunto; and witches, and wilful murderers, and other notorious malefactors. So likewise laws against incest and incestuous marriages; laws of reverencing and obeying superiors and governors; and of dealing justly in borrowing, restoring, buying, selling, and all manner of contracts, Exod. xxii. 20; Deut. xiii. 9; Exod. xx. 18; Num. xxxv. 30; Lev. xx. 11, &c., xix. 32, 35.
A Commentary on the whole Epistle to the Hebrews, 2:123.
Westminster Divine George Gillespie speaks of “the common distinction” between general and particular equity and gives examples of each:
[The civil magistrate] is obliged to those things in the judicial law which are unchangeable, and common to all nations [ie. general equity]: but not to those things which are mutable, or proper to the Jewish Republic [ie. particular equity]. But then he [Johannes Piscator] explains this distinction, that by things mutable, and proper to the Jews, he understands the emancipation of an Hebrew servant or handmaid in the seventh year, a man’s marrying his brother’s wife and raising up seed to his brother, the forgiving of debts at the Jubilee, marrying with one of the same tribe, and if there be any other like to these; also ceremonial trespasses, as touching a dead body, etc. But things immutable, and common to all nations, are the laws concerning moral trespass, sins against the moral law, as murder, adultery, theft, enticing away from God, blasphemy, striking of parents. Now that the Christian Magistrate is bound to observe these judicial laws of Moses, which appoint the punishments of sins against the moral law, he proves by these reasons.
Wholesome Severity Reconciled With Christian Liberty
Gillespie goes on to explain the 7 reasons Piscator gives for the abiding duty of the magistrate to punish sins against the moral law (see here).
American Covenanter James R. Willson (1780-1853), bases his argument for the abiding validity of the penalties for crimes against the moral law on this basic distinction of general and particular equity:
Everyone knows that the Old Testament abounds with such penalties. Such are all the laws respecting theft, damage, gross idolatry, blasphemy, the desecration of the Sabbath, rape, incest, adultery, assaults and batteries, manslaughters, and murders. That these penalties remain under the New Testament in full force is evident; for they were neither ceremonial nor judicial; they were no better adapted to Israel than to other nations; they do not expire by their own limitation; the crimes against which they were enacted are as aggravated now and as mischievous to society as of old, and men are now as prone to commit them as they were in Judea.
Political Danger: Essays on the Mediatorial Kingship of Christ Over Nations and their Political Institutions 1809-1838, pgs. 422-23.
Besides some of the aforementioned examples of which laws are particular and which are general in their equity, how is one to determine which laws fit into which category? The question we are to ask of each of the judicial laws is, What made this command just when it was given? Was it just and equitable because of the particular circumstances of Israel (hence it would be particular in its equity)? Or was it just, being rooted in nature and fit for any people governed by the moral law (general equity)? Those laws which were entirely general in their equity (like the death penalty for adultery or murder) bind the magistrate today due to the fact that the law was specifically not tied to the circumstances of Israel. We must make these distinctions and keep a consistent hermeneutic, rather than a careless Antinomian hermeneutic of abrogation on the one extreme, and a simplistic and excessive hermeneutic that the judicial law is still in force in toto on the other extreme. William Perkins elaborates:
Therefore the judicial laws of Moses according to the substance and scope thereof must be distinguished . . . . . Some of them are laws of particular equity, some of common equity. Laws of particular equity, are such as prescribe justice according to the particular estate and condition of the Jews’ Commonwealth and to the circumstances thereof . . . . . Of this kind was the law, that the brother should raise up seed to his brother, and many such like: and none of them bind us, because they were framed and tempered to a particular people. Judicials of common equity, are such as are made according to the law or instinct of nature common to all men: and these in respect of their substance, bind the consciences not only of the Jews, but also of the Gentiles: for they were not given to the Jews as they were Jews, that is, a people received into the Covenant above all other nations, brought from Egypt to the land of Canaan, . . . but they were given to them as they were mortal men subject to the order and laws of nature as all other nations are.
William Perkins, A Discourse of Conscience (1596), pg 17.
Francis Turretin lays out his hermeneutic for figuring if a judicial law is of common/general equity or of particular equity:
For distinguishing those things which are of common and particular right, a threefold criterion can be employed.
(1) That what prevails not only among the Jews, but also among the Gentiles (following the light of right reason) is of common right. Thus the Greeks, Romans and others had their own laws in which are many things agreeing with the divine laws (which even a comparison of the Mosaic and Roman law alone, instituted by various persons, teaches)
(2) What is found to be conformed to the precepts of the decalogue and serves to explain and conform it. This is easily gathered, if either the object and the matter of the laws or the causes of sanctioning them are attended to.
(3) The things so repeated in the New Testament that their observance is commended to Christians.
Institutes of Elenctic Theology, XI.xxvi.3.
Lastly, it is important to note that Reformed theologians have not always agreed 100% with one another in regards to what is of general or particular equity. For instance, Samuel Rutherford argues that punishing theft is of general equity, but that the “manner or degree of punishment is more positive” such as that restitution can be exchanged for whipping (A Free Disputation, 266). Although we might disagree with Rutherford here, (it is difficult to see how the punishment of whipping is equitable to the crime of theft better than restitution would be, although four oxen for one ox is certainly particular to the economic circumstances) he is being consistent with the confessional hermeneutic of general and particular equity.
There is not a perfect uniformity historically around all the penalties against the moral law being of purely general equity. All agree that some type of equitable penalty was general in those cases, but many would find the specific form of the penalties as particular, such as Turretin, “Thus in the laws concerning the punishment of crimes, the substance of the punishment is of natural right, but the manner and degree of punishment is of particular right and on that account mutable” (Institutes, XI.xxvi.4). (Turretin does not mean that the magistrate can arbitrarily decide what manner and degree of punishment he wishes, rather, the punishment must be equitable, i.e. the punishment must meet the crime, not being too harsh or too soft cf. Deut. 19:21). This is especially poignant in the death penalty for the Sabbath where it seems like there is almost an even split over if death was general or particular in its equity.
However, the Antinomian hermeneutic that the entire judicial law is abrogated and that crimes against the moral law, first and second table, are not enforceable by the magistrate, as well as the simplistic and excessive hermeneutic that the judicial law is still in force in toto, are both out of accord with the Reformed and confessional position on the law and the civil magistrate; as Turretin says, “we make distinctions.”