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The Decalogue: Cornerstone of Jurisprudence

By John Eidsmoe
February 01, 2003

The Thomas Goode Jones School of Law, at which I have had the honor to teach Constitutional Law for the past twelve years, declares in its mission statement that "Biblical truth is the foundation of just law." The school's namesake had an illustrious background: Confederate war hero, newspaper editor, lawyer, legislator, governor, author of the first code of legal ethics, and finally as a federal judge for the Middle and Northern Districts of Alabama. He had studied the works of Sir William Blackstone, Sir Edward Coke, Chancellor James Kent, Simon Greenleaf, and other jurists who understood that God is the true source of law. When he died in 1914, W.E. Vasser wrote of him:

O! honest judge! O! upright man! Of law his conduct grandly spoke, Conforming to the Lord's own plan Promulged 'mid Sinai's fire and smoke.

It is an irony of history, then, that eighty-eight years after his death, his successor on the federal bench would rule that the Ten Commandments monument must be removed from the Alabama Judicial Building because the monument was installed as a recognition of the Judeo-Christian God.

But the Ten Commandments have been the foundation of Western law. Around 890 AD, Alfred the Great produced the Book of Dooms, the first written legal code to govern all England, and it began with a recitation of the Ten Commandments. The Ten Commandments, and the Old and New Testaments in general, were a principal source of study in the medieval Inns of Court (England's law schools), even in an age before the Reformation when laymen were often denied direct access to the Bible.

The Decalogue and the Nation
All Scripture is the inspired and infallible Word of God. But the Ten Commandments are a special part of the Word of God, both in the way they were revealed and in their content. God revealed them to Moses on tablets of stone. And they summarize the basic principles of law that govern all people and all nations.

Martin Luther said of the Ten Commandments,

The Decalogue is not of Moses; nor did God give it to him first. On the contrary, the Decalogue belongs to the whole world; it was written and engraved in the minds of all human beings from the beginning of the world.

The basic values of almost every legal system in the world are summarized in the Ten Commandments. Among these is respect for life, expressed in the Commandment "Thou shalt not kill" and reflected in the homicide laws of every legal system. Those who respect the right to life may disagree among themselves as to whether this Commandment prohibits just warfare or capital punishment. My own view is that the Hebrew term ratsach refers to an unjustified act of murder, not to self-defense, national defense, or justified executions. But even in these situations, we must never lose sight of the seriousness of taking a life that has been created in the image of God.

Another basic value is respect for property expressed in the Commandment "Thou shalt not steal" and reflected in the property laws and larceny laws of most civilizations. This Commandment secures the right to private property, a cornerstone of productivity and a limit upon government power. A few have objected that this Commandment could mean "thou shalt not steal from the state or from the commune." But the last Commandment, "Thou shalt not covet," removes any doubt about private property: "Thou shalt not covet thy neighbor's house, thou shalt not covet thy neighbor's wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbor's."

Another basic value is respect for truth. The Commandment "Thou shalt not take the name of the Lord thy God in vain" prohibits not only blasphemy but also perjury; see, for example, the Heidelberg Catechism, Luther's Small Catechism, and the Catechism of the Catholic Church. Strict penalties for perjury are essential to a system of justice. As President Washington asked in his Farewell Address, "[W]here is the security for property, for reputation, for life, if the sense of religious obligation deserts the oaths which are the instrument of investigation in Courts of Justice?"

Courts cannot do justice if they cannot discover the truth: Did the defendant commit the crime, or didn't he? And the knowledge that there is an all-knowing, all-seeing God before whom all will give account, even though we may fool the judge and jury, is a powerful incentive to tell the truth.

Respect for truth is further expressed in the Commandment "Thou shalt not bear false witness."A society that has no respect for truth cannot function. Why bother asking somebody what time of day it is, if the person is as likely to lie as to tell the truth? Why stop at a gas station and ask directions, if we don't believe most people tell the truth most of the time?

Still another value is respect for family, expressed in the Commandments "Thou shalt not commit adultery" and "Honor thy father and thy mother." The family is the basic unit of society and the basis of governmental authority as well. Luther's Small Catechism, the Heidelberg Catechism, and the Catechism of the Catholic Church all agree that the Commandment to honor parents includes a duty to honor all legitimate governmental authority. John Locke based all governmental authority upon the Fifth Commandment, apparently on the theory that parents delegate their governmental authority to civil rulers.

Crime and Punishment
While all of the Ten Commandments are relevant to law and government, all are not necessarily the basis for legislation. The Decalogue itself does not set forth punishments for violations of the Commandments. But various portions of the Mosaic law set forth punishments for murder, adultery, theft,perjury, and dishonoring a parent. Yet so far as I can determine, no one in the Bible was ever punished by civil government for coveting.

How, then, is the Commandment "Thou shalt not covet" relevant to civil government? Simply this: It is a hedge, or protection, against other violations. One who covets his neighbor's property is more likely to steal. One who covets his or her neighbor's spouse is more likely to commit adultery. People who have been taught not to covet are much easier to govern than those who have not.

All of which brings us to the basic value of those who founded our legal system: respect for God. This value permeates the First Table of the Law: "I am the Lord thy God; Thou shalt have no other gods before me; Thou shalt not worship a graven image." Students of the Bible may disagree as to the extent to which respect for God should be written into the law or enforced by law, but it is the basis for law itself.

Civil government derives its authority from God, as Romans 13 and other passages of Scripture make clear. At the time of the Constitutional Convention, the constitutions of all thirteen states recognized God as the source of governmental authority; Pennsylvania's constitution even cited Romans 13 as support for that proposition. The Declaration of Independence stated that the former colonies were entitled to independence by "the laws of Nature and of Nature's God." People have greater respect for government and its laws and institutions when they know that government is sanctioned by God Himself.

God also limits the authority of civil government, for government is obligated to respect human rights. The Declaration of Independence states, "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." Jefferson, the Declaration's primary author, also declared, "The God who gave us life, gave us liberty at the same time." He later asked, "Can the liberties of a nation be secure when we have removed their only firm basis, a conviction in the minds of the people that those liberties are the gift of God, that they are not to be violated without His wrath?"

Government is more likely to respect human rights when it is composed of people who recognize that those rights are bestowed by God. If rights come only from the state, then they are not really unalienable rights at all, but only negotiable privileges. That which the state gives, the state can take away. Rights cannot truly be unalienable unless they come from a higher source than government, and what higher source could there be, but God?

All ten commandments of the Decalogue are relevant to law and government. And yet, the Federal District Court has ruled that the Ten Commandments monument must be removed from the Alabama State Judicial Building because the monument was placed in the Judicial Building as a recognition of the Judeo-Christian God. This, Judge Myron Thompson ruled, constitutes a violation of the Establishment Clause of the First Amendment, which prohibits government from favoring one religion above others.

The Supreme Irony
And here lies the supreme irony.

Judge Thompson holds court in the Federal Courthouse, a few blocks away from the Alabama State Judicial Building. In front of the Federal Courthouse, standing by itself, is a sculpture of Themis, the Greek goddess of law and justice. Chief Justice Moore's attorneys brought this to Judge Thompson's attention during the trial, but Judge Thompson utterly ignored this fact in his ruling.

These two monuments — The Ten Commandments in the Alabama State Judicial Building, and the image of Themis in front of the Federal Courthouse — capsulize the real controversy in this case. Will we be governed by the values of the Ten Commandments as represented by Chief Justice Moore's monument, or by the values of paganism and statism as symbolized by Themis at the Federal Courthouse?"Choose you this day whom ye will serve" (Jos. 24:19).

A final thought: Many Ten Commandments displays have been challenged in court in recent years. Some courts have ruled the displays unconstitutional; others have upheld them. Those that have upheld the displays have reasoned that the Ten Commandments have secular value as commemorating our history and providing a moral basis for law.

In a sense, though, both sides have been argued from humanistic premises. Ten Commandments displays are unconstitutional because they impose Judeo-Christian religion upon other people. Or, Ten Commandments displays are constitutional because they aid civil government.

But in many Ten Commandments cases, both sides argue as though God doesn't necessarily exist. Decalogue supporters often argue that even if God doesn't really exist, the fact that people believe He exists makes them more willing to respect legitimate authority, recognize and protect human rights, tell the truth, and refrain from committing crimes. In other words, it is the belief in God and the Ten Commandments, not the objective existence of God or the objective validity of the Commandments, that gives them secular value and legitimizes their public display.

But what if God really does exist? What if the Ten Commandments truly reflect His eternal will and command? How would that affect modern jurisprudence?


Topics: American History, Biblical Law, Constitution, The, Culture , Education

John Eidsmoe

John Eidsmoe is Professor of Constitutional Law at the Thomas Goode Jones School of Law, Faulkner University, Montgomery, Alabama. He is also a retired Lt. Colonel in the U.S. Air Force Reserve, and an Adjunct Professor at Birmingham Theological Seminary. He is an ordained pastor in the Association of Free Lutheran Congregations.

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