Law and Gospel: A Study Integrating Faith and Practice

By John Warwick Montgomery

A monograph integrating the study of law with the study of Christian theology. Starting with an examination of the three classical functions of the law (political, paedogogical, and didactic), and the distinctions between law and gospel the study moves on to examine contracts, criminal law, real and personal property, laws of evidence, and civil and constitutional law.

• Language: English
• Publisher: New Reformation Publications
• Release date: Jan 27, 2018
• ISBN: 9781945500152

Book preview

Law & Gospel

A Study Integrating Faith and Practice

by John Warwick Montgomery

An imprint of 1517. The Legacy Project

Law and Gospel: A Study Integrating Faith and Practice

First Canadian edition © 1994 by John Warwick Montgomery

Second, American edition © 2015

All rights reserved. No part of this publication may be reproduced, distributed, or transmitted in any form or by any means, including photocopying, recording, or other electronic or mechanical methods, without the prior written permission of the publisher, except in the case of brief quotations embodied in critical reviews and certain other noncommercial use permitted by copyright law. For permission requests, write to the publisher at the address below.

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ISBN: 978-1-945978-22-7 Soft Cover

ISBN: 978-1-945500-15-2 E-Book

NRP Books, an imprint of New Reformation Publications, is committed to packaging and promoting the finest content for fueling a new Lutheran Reformation. We promote the defense of the Faith, confessional Lutheran theology, vocation and civil courage. For more NRP titles, visit www.1517legacy.com.

For The Rt. Hon. Sir Christopher Slade and all lawyers seeking to integrate their faith with their understanding and practice of the law

John Warwick Montgomery

JOHN WARWICK MONTGOMERY is considered by many to be the foremost living apologist for biblical Christianity. A renaissance scholar with a flair for controversy, he lives in France, England and the United States. His international activities have brought him into personal contact with some of the most exciting events of our time; not only was he in China in June 1989, but he was in Fiji during its 1987 bloodless revolution, was involved in assisting East Germans to escape during the time of the Berlin Wall, and was in Paris during the days of May 1968.

Dr. Montgomery is the author of more than sixty books in six languages. He holds eleven earned degrees, including a Master of Philosophy in Law from the University of Essex, England, an LL.M. and the earned higher doctorate in law (LL.D.) from Cardiff University, Wales, a Ph.D. from the University of Chicago, and a Doctorate of the University in Protestant Theology from the University of Strasbourg, France. He is an ordained Lutheran clergyman, an English barrister, a French avocat (Paris bar), and is admitted to practice as a lawyer before the Supreme Court of the United States. He obtained acquittals for the Athens 3 missionaries on charges of proselytism at the Greek Court of Appeals in 1986, and has won four religious cases at the European Court of Human Rights.

Dr. Montgomery is Professor Emeritus of Law and Humanities, University of Bedfordshire, England, and Distinguished Research Professor of Philosophy, Concordia University Wisconsin, U.S.A. He is listed in Who’s Who in America, Who’s Who in France, Who’s Who in Europe, and Who’s Who in the World.

Dr. Montgomery has written and lectured extensively on the evidences for the truth of Christianity. A list of his related books and audio recordings will be found in the Suggestions for Further Study at the end of this book. These materials are available at www.1517legacy.com.

Table of Contents

1. Three Functions of Law

2. Law Is Not Gospel

3. But Law Is Indispensable

4. Like Janus We Look Backward and Forward

5. Theology in Contracts

6. Quasi-Contracts

7. Agency, Domestic Relations & Public Officers

8. Torts and Damages

9. Criminal Law

10. Real & Personal Property and Mortgages

11. Equitable Remedies & Trusts

12. Wills, Estates, and the Construction of Legal Documents

13. Negotiable Instruments, Suretyship & Insurance Law

14. Private Corporations

15. Municipal Corporations

16. The Law of Evidence

17. Civil Procedure

18. Constitutional Law & Criminal Procedure

19. Conflicts of Law and Comparative Law

20. Conclusion of the Whole Matter

Suggested Readings

1. Three Functions of Law

Here begins (as the old Reporters would put it) a Treatise for Bench and Bar. But, distinct from other legal treatises, ours will contain as much Theology as Law, if not more. Its purpose: to help lawyers and law students to think theologically—to relate their noble discipline to revelational truth-to discover that when the Apostle tells us that in Christ all things consist (Col 1:17), the sphere of Christ’s Lordship most definitely includes the law.

Our first task is to gain theological perspective on what we do as men of the law. How tragic if we compartmentalize our lives, restricting biblical understanding to our local church activities and personal relationships, never recognizing that every substantive aspect of our legal discipline can and should also be seen in light of Christ. The average Christian attorney is like the follower of medieval Muslim philosopher Averroes, who held to a two fold: what was true in theology was not necessarily true outside of theology.¹ How sad that so many Christian attorneys are satisfied with themselves if they practice the law on a high ethical plane (as if Christian truth were no more than morality), or if they occasionally witness to a client concerning their personal faith (as if Christ expected no more of them as lawyers than he does of any other believer in the Great Commission).

To achieve proper Christian perspective on the discipline of the law requires, at the very outset, an understanding of the theological functions law exercises. What use is the law? Instinctive secular answers would include: to give me a prestigious profession and a better than average salary (hedonism); to ameliorate the ills of society (humanism). But classic Christian theology has a different response. Listen to a summary expression of the three fold operation of law:

The Law has three uses, the Political, the Elenchtico-pedagogical, and the Didactic. By the Political use is meant the use of the law as a curb to hold in check wicked men, and to protect society against their aggressions. By the Elenchtico-pedagogical use is meant its use to convict men of sin and thus indirectly to lead them to Christ (Gal 3:24). This use of the Law refers primarily to the unconverted. But there is an Elenchtico-pedagogical use of the Law even for the regenerate, inasmuch as the Christian’s life should be a daily repentance, and the law enables him to see his daily shortcomings and his need of Christ more and more clearly. The Didactic use of the law is its use as a guide for the Christian mind and conduct.²

One’s first reaction to such a treatment is to protest that the law being referred to is biblical command, not the positive law of case and statute with which the attorney and judge must deal. True, the theologian has revealed law particularly in mind, as is evident from the Third, or Didactic use. However, Christian theology refuses to separate positive from revealed law, and regards the former as properly an expression of the latter. Let us consider briefly the specific application of this three-fold analysis for legal practitioners.

Politically, the law is regarded as a restraint for the wicked, not as a means of building the perfect society. Christian faith has no illusions about man: there is none that doeth good, no, not one (Ps 14:1, Ps 14:3; Ps 53:1; Rom 3:12). To be sure, the Christian attorney should strive to maximize good through the existing legal system and employ all legitimate efforts to change that system for the better where it falls short; but no legal system will be perfect, for it is administered by imperfect men, and even if it were perfect, it could not make men good. Is the lawyer’s task therefore an unimportant one, viewed politically? Hardly, for without it society would literally explode, since the conflicts of self-interest among sinful men will be resolved either within an ordered, legal framework or in anarchical conflict. But the attorney or judge must see his work in this respect as more analogous to that of the policeman (ponder the double meaning of the term lawman) than to the endeavors of the social reformer.

At the same time, the Christian attorney has a positive role of the most powerful nature—one far more significant than the (often naive) role of the lawyer-as-social-activist. The Pedagogical use of the law, which Luther regarded as its primary function, is that of "schoolmaster [Greek, paidagogos: the slave who took the schoolchild to his master] to bring us to Christ." The law shows us where we fall short, and therefore continually reminds us of our need of Christ’s redemptive work on the Cross. The lawyer has a peculiarly ideal vantage point from which to drive home to others this central truth of the gospel. He is constantly in contact with those in trouble—whether because they have personally displayed a mens rea or because they are caught in the machinery of a sinful world. What better time or opportunity to help them to see that Christ is the only ultimate answer?

Plainly, the theologians would refer us to God’s revealed law, not human law, as a guide for conduct (the Didactic use). But even here the civil (as well as the canon) lawyer can gain much from his subject matter. As we shall see as our studies progress, the positive law offers innumerable points of contact with revealed law, thereby encouraging the perceptive Christian attorney to grow in understanding of God’s will through his professional tasks. As he comes to see the interrelationship of divine and positive law, he will begin to apply the Psalmist’s words to his own discipline: O how I love Thy law (Ps 119:97, Ps 119:113); Thy law is my delight (Ps 119:77, Ps 119:92, Ps 119:97). Just as Christ’s presence in view of divine law—making it for him not a terror but a revelation of God’s loving will—so the same Christ can transform his outlook on his profession and its legal foundations. Here too, he will find, in Bonhoeffer’s words, God’s merciful help in the performance of the works which are commanded.³

Questions for Discussion

1. Why do you suppose that some Christian theologians have regarded the Didactic use of the law as superfluous or even dangerous? Does the Pedagogical use make it unnecessary? If not, why not?

2. Give a personal illustration of how (a) the scriptural law and (b) the positive law operated in your life yesterday, each according to the three functions or uses discussed in this section.

Political Pedagogical Didactic Use

Biblical Law: ____________________________

Positive Law: ____________________________

Notes

1. E. Gilson, Reason and Revelation in the Middle Ages 37–66 (1950).

2. J. Stump, The Christian Faith 309–10 (1942). This basic conceptualization is found in all the standard works of classical dogmatics.

3. Cf. Montgomery, The Law’s Third Use: Sanctification, in 1 Crisis in Lutheran Theology 124–27 (rev. ed. 1973).

2. Law Is Not Gospel

Having seen what law is from the standpoint of biblical revelation, we must now state with equal precision what it is not. As noted in our discussion of the Political and Pedagogical uses of the law, law is not gospel. Indeed, the proper distinction between law and gospel can be regarded as the key to all sound theology and Christian life.¹ In his great New Year’s sermon of 1532, on Gal