Chapter III: Divisions of Laws.
CHAPTER III: DIVISIONS OF LAWS
Divisions of laws: First, into divine and human laws.
§ 7. Seeing as there is no great utility in these general descriptions, we shall pass on to the divisions of law. First, with regard to their effector or author, we say that some laws are divine while others are human. Divine laws are sanctioned by God while human laws have been sanctioned by men. [Ius canonicum,] c. Omnes, dist. 1, from Isidore: “All laws are either divine or human. Divine laws stand by nature; human ones, by custom, and therefore [human laws] have discrepancies because they are differently acceptable to various peoples. That which is morally upright [fas] is divine law; that which involves legal right [ius] is human law.” However, this description of divine law is not very prudent, seeing that the forensic and ceremonial laws handed down to the Israelites were divine even though they did not stand by nature.
Second, into moral, ceremonial, and forensic laws.
Second, with regard to their material, divine laws are divided into moral, ceremonial, and forensic laws. Those who delight in dichotomy could say that some divine laws are eternal and immutable while others are temporal and mutable. The latter of these could be further divided into ceremonial and forensic. Chemnitz proceeds thus: “God’s Law either makes a general command about the worship of God and justice, or it defines them through certain external circumstances. This it does either toward God in acts of worship or toward man in exercising and administering justice.”1
The bases for this division.
§ 8. The basis for this common division is in Holy Writ itself. Deut. 6:1: “Now this is the commandment, the statutes, and the judgments (
) which Jehovah your God commanded me to teach you that you may do them.” Here we see clearly the commandment, statutes, and judgments listed. However, the rabbinic scholars have a rule that whenever 
and 
(“judgments” and “statutes”) are paired together, the former should mean judicial laws; and the latter, ceremonial laws. Therefore, the word “commandment” in general means the moral Law and is called “commandment” in the singular because its sum is love. Lev. 26:14–15: “But if you will not hearken to Me and will not do all these commandments (
), if you spurn My statutes (
), and if your soul abhors My judgments (
) so that you will not do all My commandments but break My covenant,” etc. (Therefore the first covenant which God initiated with the Israelites consisted of commandments, statutes, and judgments—that is, as we say today, of the moral, ceremonial, and forensic laws.) Verse 46: “These are the statutes and judgments and laws (
) which Jehovah made between Himself and the children of Israel on Mount Sinai by the hand of Moses.” Here the word torah (“law”) means the moral Law. Deut. 4:1–2: “And now, O Israel, give heed to the statutes and judgments which I teach you. You shall not add to the word which I command you nor take from it, that you may keep the commandments (
, mitsvoth) of Jehovah your God.” We should note particularly vv. 13–14 of this chapter, where this distinction is made most clearly. Moses says: “Then the Lord spoke to you and declared to you His covenant which He commanded you, to perform the Ten Words, and He wrote them on two tablets of stone. And the Lord also commanded me at that time to teach you statutes and judgments, that you might do them in the Promised Land.” Here we see that there is an obvious distinction between the “Ten Words” (or the Decalogue, which contains the summary of the moral Law) and the ceremonial and forensic laws. God gave the Decalogue to all people directly, and He Himself wrote the Ten Commandments on two stone tablets. However, the rest of the laws were given to the people and written down through the hand of Moses. When the voice of God Himself gave the Decalogue, God ordered Moses to go up into the cloud where He was. There he received the judgments which he was to publish to the people (Exodus 19). Later, he again climbed the mountain alone and received the ceremonial laws (Exodus 24). Deut. 6:20: “When your son asks you in time to come: ‘What is the meaning of the testimonies (
) which the Lord our God has commanded you?’ ” Here the word “testimonies” came to mean the moral Law. Deut. 7:11: “You shall keep the commandments and the statutes and the judgments which I command you this day.” These are also conjoined in the same way in Deut. 8:11; 11:1; 26:17; 30:16; 33:10; etc.
§ 9. Furthermore, Chemnitz (Loci, part 2, p. 30) approves of this division among the divine laws on the basis of the fact that everyone must know the Decalogue or moral Law (Deut. 6:4[–9]).2 But regarding the judicial laws, a special consistory is established at Jerusalem to which people should go if some difficult decision has come up between blood and blood, or case and case, or wound and wound. Yet when He spoke to Malachi about the ceremonial laws, He added ([Mal.] 2:7): “The lips of a priest should guard knowledge, and people should seek the Law from his mouth.” Finally, the facts reveal that one must make such a distinction among the divine laws. Christ teaches and urges the moral Law; yet He refuses3 to set up a division of an inheritance on the basis of the forensic laws of Moses (Luke 12:14). The apostle denies that the Law is abrogated through faith (Rom. 3:31); yet the same apostle forbids one to judge any Christian in questions of food, drink, or festival (Col. 2:16), and he denies that in Christ there is any longer a distinction between Jew and Greek (Gal. 3:28).
** “The rationale for this division can be taken from the very function of the Law, which is to sanction and establish the order by which man is united with his Creator. This occurs, first, by an internal similarity—as in love, righteousness, holiness, and truth—which the moral Law determines, being a kind of source, basis, substance, and norm of all other laws. Second, it occurs by an external expression of those internal virtues using symbols, the norm of which is taught by the second part, which is like an appendix to the First Tablet of the Decalogue or moral Law and which speaks about sacred ceremonies and rituals. Third and finally, it occurs by the exhibition of the duty one owes to his neighbor. The rationale for this is prescribed by the third part, namely, by the forensic law which is like an appendix to the Second Tablet of the Decalogue and which speaks about legal rights and judgments” (Backmeister). **
Here I leave devout minds to reflect upon whether or not the apostle gives a subtle hint about this division among moral, ceremonial, and forensic laws in Rom. 9:4, where he declares that to the Israelites belong “the covenants, the giving of the law, the worship.” Augustine takes “the covenants” to mean the Old and New Testaments since the Old Testament was given to the Israelites, and the New is foreshadowed in the Old. Some think this or that sanctioning of the one covenant of Law is denoted. However, because the ark of the covenant is mentioned in the context, it is not out of order to take “the covenants” by metonymy as referring to the two tablets on which the finger of God wrote the Decalogue; these tablets themselves are also called “the tablets of the covenant and testament” (Deut. [9]:11, 15; Heb. 9:4). “The giving of the law” could be applied specifically to the judicial part of the Law, which established the forum of the Jewish state. “The worship” means specifically the ceremonial law by which God had prescribed the way He wanted His people in the Old Testament to worship Him. (See Schroeder in his Analysis of Romans 9, §§ 40–42.)
Third, division into written and unwritten laws.
§ 10. We shall speak in greater detail about these individual types of divine Law once we have first presented the other divisions of the Law which people have proposed. Third, then, with regard to accidents4 some laws are called “written,” and some, “unwritten.” Justinian says, [Corpus Iuris Civilis,] Instit., De jure naturali, § 7: “There are both written and unwritten laws.” This division can be applied to both divine laws and human laws. The divine Law is either innate and engraved in the minds of people at their creation or is revealed, published, and repeated by God’s voice and is recited in Holy Scripture. Ambrose (De fuga sec.): “The Law is twofold: natural and written. The natural is in the heart; the written, on tablets.” Hence the apostle declares that, though the heathen know nothing for certain of the publishing and repetition of the divine Law, nevertheless what the Law requires has been written in their hearts. Rom. 2:14–15: “When the Gentiles, who have not the Law, do by nature what the Law requires, they are a law to themselves, even though they do not have the Law. They show that what the Law requires is written in their hearts, while their conscience also bears witness.” The Law first implanted in people’s minds is called the law of nature. Notice here that, in uncorrupted nature, the law of nature and the moral Law were the exact same thing, but now that nature is corrupted, a great portion of natural law has become darkened by sin. Only a small portion about external obedience is left in people’s minds. This is the main reason why God Himself gave the solemn publication and repetition of His Law on Mount Sinai.
Fourth, into ecclesiastical and political laws.
§ 11. With respect to their objects, human laws are divided into ecclesiastical and political laws. Ecclesiastical laws are those which are passed by a devout magistracy with the counsel of the church’s ministerium in regard to the conduct of activities for which the public ministry of the church is responsible. These are commonly called “church agendas.” If these human constitutions gain the status of being worship or meritorious or simple necessity, then they become the “traditions of men” by which God is worshiped in vain (Matt. 15:9). On the other hand, if they are established and observed for decency and good order, they apply to the apostolic rule (1 Cor. 14:40): In the church “all things should be done decently and in order.”
Political laws are those which the magistrate who has the power to pass laws establishes concerning a certain order of actions in the political government to preserve the safety of the republic. The apostle Peter commands us to obey these for the Lord’s sake (1 Pet. 2:13); and Paul, for the sake of conscience (Rom. 13:5). Wesenbecius (Parat.) defines this as follows: “A law is a virtuous decree of legitimate authority to preserve the peace of the republic, passed and written to govern its behavior and judgments.”
The division of law into natural, of the nations, and civil.
§ 12. From this it is clear what is to be concluded about the division of law [ius] into natural, of the nations, and civil—the division which both Justinian ([Corpus Iuris Civilis,] Instit., tit. de jure naturali, gentium et civili) and his imitator Gratian (Decret., distinct. 1) proposes. Justinian says:
Natural law [ius naturale] is what nature has taught all animals, for that law does not belong only to humankind but also to all the animals which are born in the sky, on land, and in the sea. From it comes the union of male and female, the procreation and rearing of their young. Civil law [ius civile] is distinguished from the law of the nations [ius gentium] in that all people who are governed by laws and customs make use partly of their own law and partly of that which is common to all people. You see, whatever law each nation establishes for itself, that belongs specifically to its own state [civitas] and is called “civil law” because it is the law that belongs specifically to that state. On the other hand, whatever natural reason establishes among all people is something all people observe uniformly. This is called “the law of the nations,” as though everyone observes this law. Moreover, there is also our
(Roman)
law [ius nostrum], which is either written or unwritten. The written law [ius] comes as law [lex], a decree of the people [plebiscitum], a decree of the Senate [senatusconsultum], an imperial decree [principium placita], edicts of magistrates [magistratuum edicta], and judgments of the learned [responsa prudentum]. The law [lex] is what the Roman people established at the behest of the senatorial magistrate (or of the consul).
This is all from Justinian, who uses the word “law” very strictly. Thus he distinguishes the law [lex] not only from the natural law [ius] and the law of the nations but also from the decree of the people [plebiscitum], the decree of the Senate [senatusconsultum], and from other kinds of civil law. He does not take the expression “natural law” to be the law of nature that still remains in the hearts of people after the fall and is part of the moral Law. (He uses the expression “the law of the nations [ius gentium]” for this.) Rather, he means the natural instinct and natural affections [storgas physicas] still left in man after the fall. The distinction of jurists among natural, primeval, and secondary law agrees with this explanation.
1 Chemnitz’s Works 8:613.
2 Chemnitz’s Works 8:613–14.
3 Read recusat instead of recenset.
4 An incidental property of a thing. That which affects something and is outside its essence. I.e., “whiteness” can be an accident of a wall, but it is not of its substance.