The Domestic Balance of Powers: Church, State, and Civil Liberty
This article dates from 1991. It was one of my original forays into the area of church and state. As such, it is somewhat lacking in the nuance or balance of my later work. The basic principles nevertheless merit the deepest consideration, especially from Christians who wish to carry out the mandate laid upon them by their Christ and Lord, to bring the nations under His aegis. Some of the outworking might require adaptation. My later work develops this theme in more mature and complete fashion.
The article now follows:
The Domestic Balance of Power
Church, State, and Civil Liberty
© 1991 Ruben Alvarado
This edition published 2013 at commonlawreview.com
The relationship of the public to the private sector in modern democracy is one of the most important subjects of contemporary debate. How free should the free market be? To what degree should government interfere in the action of private agents pursuing private ends? Should government guide an economy, that is to say, direct its economic activity in a positive way? Should it interfere in the private sector to correct alleged shortcomings? How far might such interference properly extend? In short, how should a balance be maintained between the public and private sectors? And a corollary follow-up question would ask, what alternatives are there to achieve better results, if the present arrangement proves unsatisfactory? These questions deal, at bottom, with the basic issues of balance of power and jurisdiction.
Some basic definitions are in order to lay the groundwork for further discussion. In the first place, what is actually meant by the terms public and private? Public means those things which pertain to all. It refers to things which are common, universal, and apply “across the board,” as it were, to everyone in society. Private on the other hand means things which pertain to the particular. They are the concern of or the property of particular individuals or limited corporate bodies. The use of private things or the furtherance of private aims is restricted to these bodies. They are partialities, not entireties; they relate to only a portion of the society, and not the whole.
These concepts are of course abstractions, but they are very basic ones to modern society. Since they are abstractions which very profoundly affect our lives, they have to be properly understood. Modern Western society, contemporary democracy, bases itself very definitely on them.
The basic unit here is the geo-political nation-state. This is the whole. It is composed of the individuals which reside within its boundaries. Taken as a whole these individuals comprise the “body-public”, the re-public or “public thing” (in Latin, res means “thing” and publica means “common”; “commonwealth” is a synonymous term). These same individuals taken separately, however, are considered to fall under the category of private. The things which belong to or concern them as a whole are “public” or “common” things; those which belong to or concern them individually are private things. Individuals considered one of two ways, individually or collectively, form the basic pillars, the twin foundations, of modern democracies.
The public/private distinction forms the basis for a fundamental jurisdictional division. The word “jurisdiction” also comes from Latin: juris- means “law” and dictio means “speak;” hence the word jurisdiction, “to speak the law,” means essentially “to lay down the law,” to have the authority to legislate and enforce laws. The public jurisdiction is concerned with legislating and enforcing the laws concerning the public or common things. The private jurisdiction, on the other hand, is concerned with the same legal/judicial activity concerning private things.
Now here is where modern democracy makes a very crucial application. The state, the civil magistrate, is vested with the public jurisdiction over the things pertaining to the whole, the res publica, while individuals themselves are vested with private jurisdiction over what pertains to them as individuals. Thus everything which concerns the people as a whole or which, to put it another way, does not pertain to any particular individual to the exclusion of another, falls under the direct jurisdiction of the state.
Additionally, the state mediates the relationships between the private individual actors. The individuals retain jurisdiction over their own particular affairs, but when it comes to relationships between individuals, the state assumes jurisdiction as the representative of the over-arching whole. This is an indirect jurisdiction which springs out of the exclusive jurisdiction to the public whole that it maintains.
This exclusive public jurisdiction seems to give the balance of power in society towards the state and away from the individuals. Therefore constitutional democracies strive to maintain a balance between state and individual in various ways. In the first place, the representative principle is established at the heart of civil government in order to ensure that the private individuals are not left without recourse over against the state, but that the individuals taken together, the body public, maintain their supremacy as the collective entity which the state only represents. Through political action, private individuals become participants in public life, imparting to it the desires, wishes, and goals which are expressions of what they as individuals bring from their particular lives.
Yet at this point another threat hovers over such a system, the threat of majoritarianism. If a majority of individuals, be it ever so slight, desires to push through a program which a minority disagrees with, it may do so. The majority may impose its will on the minority, there being no institutional means by which to stop it. Granting the state the exclusive public jurisdiction means giving whoever is behind the state an irresistible power to work their will.
The chief means by which this eventuality has been guarded against is through a constitutionalist and “higher law” approach. Through establishing a set of laws as a standard which remain over the state and beyond the reach of the state it is hoped that the excesses of an over-reaching public authority may be restrained. The primary basis for such a set of laws is found in the doctrine of inalienable natural rights. These are rights which inhere in the individual, which cannot be infringed nor taken away, nor even given away by the individual himself. They are above debate or question, and so serve as the bulwarks of any state limitation. Here it does not matter what a majority decides, nor how big the majority is which decides something; if a thing infringes an individual’s rights, it cannot be allowed.
The great theories of state limitation from John Locke forward have been grounded in this concept of natural rights. Locke himself grounded these rights in the law of nature, a law decreed by God Himself. The American Declaration of Independence written by Thomas Jefferson similarly invoked the “law of nature and nature’s God” and in stirring language declared “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.” In fact, the Declaration goes so far as to declare that governments are instituted “to secure these rights.” Thus the individual does not exist for the state, but the state for the individual. The rights to life, liberty, property (following Locke) or the pursuit of happiness (Jefferson), are possessions of individuals whose lives are anterior to the state and which only look to the state to preserve those rights.
Yet there are other ways to construe the democratic political equation. The Frenchman Jean-Jacques Rousseau did so, building on Locke’s construction but rather reversing the priority. The whole being greater than any particular element of that whole, Rousseau reasoned that the body public was greater than any individual element. What the people as a whole were, was greater than what they as individuals were. For the volonté general, the general will, embodied the will of all the people, and as such was itself the representation of the higher law, which the particular individual could not presume to block. The state as the summation of the body public and speaking through the representative assembly, incarnated the people as a whole, and therefore its interest, the public interest, was greater than that of any individual.
The difference in interpretation between John Locke and Jean-Jacques Rousseau summarizes the conflict which has persisted wherever modern democratic regimes have been established. Which of the two, the individual or the whole, is to predominate? Which of the jurisdictions, the private or the public, should be pre-eminent? The private sector and the public sector alternate in priority as the pendulum of public opinion swings back and forth between them. And here as well appears the conundrum of modern political economy, the conflict between “democratic capitalism” vs. “democratic socialism.” The former favors the private sector, the latter favors the public sector. And the debate between them continues incessantly. At this time it appears the proponents of the private sector have the upper hand, but the pendulum always swings.
Civil Government and the Natural Society
Originally there was no public sector as we nowadays have. Man was created to pursue what theologians term the “cultural mandate” (Genesis 1:26-8), in which God gave man the task of subduing the creation, a task further elaborated as cultivation and preservation (Gen. 2:15). It was a task given to man in familistic terms, i.e. to be carried out in terms of marriage and family. As such it was given to the “private sector.”
But with the fall came the institutionalization of coercive government, for it is as a result of the fall that problems exist at all. That there is an institution of man which exercises physical coercion over man is something which would never have been necessary if the fall had not occurred. Man’s loss of innocence brought in the antagonism, injustice, and oppression of man against his fellow man that makes the institution of civil government necessary. This power, symbolized by the sword, was instituted explicitly after the Noahic flood (cf. Genesis 9:6).
Natural society in its fallen state was given firm establishment through the Noahic covenant. God in this covenant promised the preservation of human society, and instituted civil government to ensure that preservation. But the introduction of civil government brought new possibilities for human society in respect to conscious rebellion against its Creator. For the state, while essential in its service of preserving society from anarchy, itself becomes the focus of the evil in the human heart. The Tower of Babel provides the paradigm of this: mankind came together to focus itself into one collective representative institution, striving to create a collective identity and power apart from and against the God it was created to serve.
“And they said, Go to, let us build us a city and a tower, whose top [may reach] unto heaven; and let us make us a name, lest we be scattered abroad upon the face of the whole earth” (Gen. 11:4). They would build a city with a tower reaching up into the heavens, as a focal point for unity. They would make a name for themselves: they would create for themselves an identity of their own device apart from that which was imputed them in creation and fall.
Here is laid bare the basic orientation of natural, post-fall human society. That is, man wishes to set himself up in opposition to God, through a unification and collectivization of individuals. The focus for this unification is the state. But notice one more element: the tower stretching into heaven. The state establishes a cult, a worship, a ritual, which serves as the bonding glue for the society, and the basis for its power and its legitimation. Religion is at the heart of this project. Religion is always at the heart of this project, because it is always the center of human society. And it is always a public, state-recognized, established religion which serves this purpose. Civil religion is as natural as the rising and setting of the sun, and as inescapable.
We have a seemingly insoluble dilemma set here before us. Apart from the coercive authority of the state, we have anarchy. But with the institution of the state we have the Tower of Babel always threatening to arise and swallow society whole. What can serve to restrain the state? Can the citizens themselves? But this implies that the citizens themselves are capable of government. Then why a state in the first place if the citizens are capable of governing themselves? In short, the public sector and the private sector are yet at odds with each other in the natural society. The inevitable outcome of the struggle between them, as history has repeatedly shown, is the stifling stagnation of bureaucracy and the regime of “bread and circuses,” of elitist oligarchy combined with populist welfarism.N_1_ (1)
Redemption and Civil Government
The solution follows immediately upon the posing of the dilemma. Genesis 12 directly follows Genesis 11, and gives us the divine solution to the natural dilemma. For the natural desire in man for a restored society, the “quest for community” as Robert Nisbet has described it, (2) is at bottom a longing for the restoration of what was lost at the fall. And God as revealed in Scripture showed Himself not at all unfavorable to such a desire. On the contrary, His promises as revealed in Genesis 12, in the covenant made with Abraham, show that precisely these longings and desires of man would be answered. But only on His terms.
For God broke into history by a divine answering call. “The call of Abram was a response to human need.” (3) The tower-builders wanted to unite themselves into a great nation; God promises Abraham that he will make of him a great nation. The tower-builders wanted to make a name for themselves; God promises Abraham to make his name great. The tower-builders wanted to ascend into heaven; God promises to come down to earth and dwell with Abraham. The curses which God had laid on man and on the creation since the fall, curses which man by himself and for himself had sought to alleviate at Babel, are promised to be lifted and exchanged for blessings. (4) But the terms as well are made clear. Abraham must serve God, worship Him alone, obey His law. The original cause of the fall must be rectified, viz. disobedience to the Creator. The restoration of the fallen condition of man would follow in the wake of obedient Abraham. “And I will bless them that bless thee, and curse him that curseth thee: and in thee shall all families of the earth be blessed” (Gen. 12:3).
Here especially the condition of entire nations are in view, and not only with regard to the private sector (“all the families of the earth”) but with regard to the public sector and public policy. For Abraham’s name was not always Abraham, but first Abram, which means “high father.” This name reflected the promise to him that he would be made into a great nation; it speaks of his fatherhood of that nation. But the promise was a two-fold one: not only would he be made into a great nation, but he would bring blessing to all the nations of the earth, as decreed in Genesis 18:18. Corresponding to this two-fold thrust of the covenant, i.e. that he would become a great nation and that all the nations of the earth would be blessed in him, God changed Abram’s name to Abraham- “father of many nations,” i.e. father of many peoples in their geo-political organization. He changed his wife Sarai’s name to Sarah, meaning “princess,” with the same thing in view: Sarah would be the mother of these nations. Kings would come from Abraham’s loins (Gen. 17:6). Abraham’s offspring would possess the gates of their enemies (Gen. 22:17): this is biblical terminology for political power. (5)
What is in view here is, in a nutshell, the plan of redemption for human society – out of its bondage to idolatry and, furthermore, the alleviation of its oppressions, exploitations, and injustices. The submergence of the nations into what has been termed “structural sin,” stagnant, rigid, stationary, unchanging regimes of stifling despotism, is relieved by this breaking into the closed world of fallen human society by the God of redemption who brings a message of hope and an instrument of healing in His servant Abraham. The covenant of Abraham has the redemption of the world in view through the instrumentality of the great nation which would spring from his loins, to which kings, princes, rulers and authorities, as well as the families and peoples they ruled, would submit to receive the promised blessing.
Now it is evident from the testimony of Scripture that the first institutionalization of this covenant appeared through the call of Moses and the establishment of the covenant at Sinai with the offspring of Abraham. This resulted in the physical establishment of the “great nation” through which the nations of the earth would be blessed. And it is readily apparent that this nation had a mission in the world: to be the medium through which God’s blessings would be poured out into the surrounding nations. Its laws, as well as its temple, both had this as their purpose. For the laws were meant to bear witness to the righteousness of God, and His favor in reestablishing true justice and holiness in the earth among His chosen people (Deuteronomy 4:5-8). And the temple which Solomon built was to be open to the foreigner and to be a witness to the nations (cf. 2 Samuel 8:41ff.), a house of prayer for all the nations (cf. Isaiah 56:7).
The covenant made with David, to establish him and his descendants upon the throne of Israel, formed the next installment of this great plan. For the king of Israel would rule from Israel over the nations of the earth. Israel awaited this Messiah, this Anointed One, in the knowledge that through Him and only through Him would the mission of Israel on earth be accomplished. He would be the Redeemer of Israel first and foremost, wiping away the shame that their failure to be the blessing they were called to be had brought. He would restore the fortunes of Israel and bring her to preeminence among the nations.
The Church and Civil Government
But with the advent of this Messiah, Jesus, Israel “according to the flesh” to use Paul’s description performed the ultimate act of disobedience, the betrayal of their own covenant vows, in rejecting Him and therefore the salvation promised in Him. But as Paul further explains, the true Israel was never really composed of the mere physical descendants of Abraham, but rather his spiritual descendants, those of the faith of Abraham. The purpose of the Messiah in coming was to gather these together into one, who would then compose the “great nation” of Abraham which the original Israelites lost. “Therefore say I unto you, The kingdom of God shall be taken from you, and given to a nation bringing forth the fruits thereof,” was the judgment pronounced by the Messiah (Matthew 21:43). From that point on the Abrahamic “great nation” has been the Church.
It has been the legacy of the Western Latin Christian Church to take seriously this call, entering into the lives of nations as the seed of Abraham bringing blessings, but at the same time demanding the recognition by the nations of Christ the King. Together with that recognition was to come the recognition of the status of the Church as the great nation of Abraham, the body of Christ, the New Jerusalem and New Zion from which this Christ reigns, the holder of the keys of the Kingdom of Heaven. The Church brought the testimony of (in the words of the Apostle John) “Jesus Christ, [who is] the faithful witness, [and] the first begotten of the dead, and the prince of the kings of the earth. . . [Who] hath made us kings and priests unto God and his Father; to him [be] glory and dominion for ever and ever.” (Revelation 1:5-6). The Church was the fulness of Christ filling all in all (Ephesians 1:22-23), co-heir with Him of God’s throne.
Now this theological position was made through Augustine’s De Civitate Dei, “Of the City of God,” pre-eminent in our church tradition. Out of this understanding has come the peculiarly Western conception of the separation of church and state, the separation of the spiritual and civil powers, which in all previous natural societies had been fused together in a common domination of subjects. The spiritual and the civil powers were divided, and in this division the central position of the state and the position of religion as the means by which the rulers were guaranteed this centrality, was overthrown. The free and independent church replaced the state as the central institution in Western society, and in its de-divinization the state was demoted to the role of preserving the “secular” interests of society. The papacy of Gregory vii, and the so-called “Papal Revolution,” made this institutional division concrete.
Out of this unique societal framework grew the entire apparatus of constitutional limitations on government and the growth of the rights and liberties of the people. The church mediated the relationships of all levels of society, and in a process of grass-roots, bottom-up give-and-take between rulers and ruled, between masters and servants, between magistrates and citizens, the constitution of Christendom was developed. In this process the mediation of the church was indispensable. The church was the sine qua non, the necessary element which enabled the process to go forward and not become submerged in institutional inertia. At bottom it was the place of the sacraments at the center of society, and the church’s administration of those sacraments as tools of discipline, which enabled the continued development of institutions of justice. The spiritual sanction was the means of disciplining the laity, even the chief of the laity – the princes and kings – and it was the threat of excommunication which alone would keep them in line, and which could force them to do that which was right even when they held the physical means to resist any physical attempt to restrain them. Baptism and communion formed the common bond of superior and inferior, of ruler and subject, of lord and vassal, lord and serf, of citizen and magistrate, and their administration was taken seriously.
The Church as Mediator of the Balance of Power
In returning to the discussion concerning the balance of power in society, and the maintaining of the proper equilibrium between public and private sectors, it becomes apparent that an element has been added which becomes the means through which this problem can be solved. The simple division of public and private becomes an incomplete one, and in its incompleteness it becomes untenable. A solution is afforded by recognizing the biblically revealed categories of creation, fall, and redemption, and approaching the situation afresh. The call of Abraham means that the God of Creation will break into that natural/fallen situation and do so with redemptive power. And so, into and over the state and the family (the two basic institutions of the natural society), the church comes to take her place.
The monopoly of jurisdiction over public life which the state possesses is then given up; here lies the solution to the problem of the balance of power in society. The church in excercising a coordinate jurisdiction in the public arena limits the state and mediates its relation to the citizenry. It is not enough to have representation of the citizenry in the state. There must be what Gary North has termed “multiple jurisdictions” in society in order to gain a true balance of power. (6)
According to this perspective and in line with the mainstream of the Western orthodox tradition, the sacraments must occupy the place of honor in society. Excommunication must serve as the sanction of last resort upon injustice and oppression. Because injustice, oppression, exploitation, and the other evils which infest human society so often lodge themselves into institutions of power and chiefly in the state, there must be a counterweight to these institutions in a system of checks and balances which find their point of contact in the administration of the sacraments. What this would mean is that citizenship and the political privileges attendant upon citizenship, i.e. the exercise of political authority through voting or the holding of public office, would best be restricted to communicant Christians. (7)
What place would this leave those who do not confess Christ? Does the holy commonwealth mean the utopian expectation of total allegiance and obedience to the risen Christ on the part of all residents of a nation? By no means. We speak of the redemption of the world when we speak of such theocracy, and not the rejection and condemnation of it. “For God sent not his Son into the world to condemn the world; but that the world through him might be saved” (John 3:17). By means of the establishment of such a regime, justice, real justice, is established in the natural society. And only where real justice is established can human society flourish.
This is because in a truly Christian theocracy the church maintains a jurisdiction only over baptized communicant members. It exercises a spiritual rather than a temporal jurisdiction; as the community of the spiritually “saved” the church does not pretend to enter into the lives of those who do not subscribe to her teaching and discipline. Now the state does maintain an all-encompassing (in geographical terms) jurisdiction: that is, it lawfully exercises a limited authority over every individual within its geographic boundaries. Yet the exercise of church discipline has the indirect secular impact provided by the connection between sacrament and citizenship as stated above. Thus in a strict Christian theocracy political rights (as distinguished from civil rights) would accrue only to baptized communicants.
Through the exercise of her spiritual discipline the church acts as counterweight to political corruption. This is in fulfillment of her Abrahamic mandate. In fulfillment of the promises attached to that mandate, the church becomes the instrument of God’s blessing in the world and the means through which the curse of God is removed from the creation. The nation which establishes the church at its heart becomes blessed: “all the nations of the earth shall be blessed;” “all the families of the earth shall be blessed.” This blessing extends to touch all areas of life, everything which was corrupted by the curse.
And this blessing is enjoyed by believer and unbeliever alike. This is the essence of the doctrine of common grace. As has been stressed by Abraham Kuyper (8) as well as Gary North, (9) common grace is sustained by the special grace which only the church dispenses. Thus from the church flows the “living water” which results in the healing of the nations and their prosperity, a result to which the prophets testify, as do the promises of God, as do the apostles of Christ. (10)
The original freedom of the private sector, of private actors whether individuals, families, or business corporations (all extensions of the basic institution, the family), to pursue the cultural mandate which is the common inheritance of all mankind is then restored. The private sector forms the meeting place for people of all descriptions, races, creeds, convictions, to come together and interact. This is the true pluralism and the true area of competition. Through theocracy the public sector maintains an oversight over the private sector without bearing down oppressively upon it. And this balance can only be achieved through the establishment of such a theocracy. Production and exchange, buying and selling, contract and bargain, not to mention simply giving and sharing, form the true forum of pluralistic give-and-take, as they form the great forum of life on earth in terms of the pursuit of the cultural mandate. In this way every individual is enabled to work out his own destiny using the gifts, the “talents,” God has given him. It is in this way that each can bear the fruit of his own actions.
The public sector must retreat from its unfruitful interference in the private sector and return to its God-given position of oversight for the common good. Modern pluralism is established in terms of an absolute relativism which overtly denies any higher law because it puts all beliefs on the same level. It results in the politics of interests groups and pure power interests, because there is no higher ethic and morality to determine which of these interests is legitimate and which is not. The only test is the test of strength. The total annihilation of the rights of minorities in the interest of victorious majorities is the result. No laws can restrain the majority; and the rule of law which alone enables a free market to function equitably is only tenable under a Christian theocratic regime.
This sounds well and good, one might ask, but if only Christians can become citizens, what happens if the Christians decide to use their political authority to impose inequalities and injustices in their favor over against those groups in society which do not qualify for citizenship? The answer is that the opportunity for this to occur is taken away precisely by the theocratic constitution. What is here instituted is a bottom-up, appeals-court system for the administration of justice. The basic law-book is the Bible, open and accessible to everyone alike, citizen and non-citizen. Biblical law speaks clearly of the necessity for judges to judge impartially and to apply the law impartially to both citizens and non-citizens. Since the laws are open, above-board, and indiscriminate in their application, non-citizens would have just as much right to present grievances in the courts as would citizens. The chief difference between citizen and non-citizen with respect to the civil authority would be in the choice of office-holders. The laws themselves are common to all. Civil rights are protected where political rights are restricted.
Such a program was substantially in effect through much of the history of Western Christendom. It forms the common inheritance of Augustinians, Catholic and Protestant alike. The similarity of political theory between Catholic and Protestant during and after the Reformation points to this common ground. The tragedy of the Reformation was that the Augustinians on either side could not agree to share their positions of churchly authority, and on the basis of common agreement retain that privileged position over against society at large. France in the 1560’s came closest to achieving that position. We will let sleeping dogs lie and not go further into that particular chapter of church history. But suffice it to say that it was through their inability to compromise that the position as a whole was lost to secular humanistic alternatives.
And this brings us back to the original discussion of the balance of power in modern democracy. What has been outlined above is but a sketch. But there is an element of tragedy behind this, as has been touched upon. Will the peoples of Christendom, those who once bent the knee and acknowledged the kingship of Christ, ever do so again? Will they ever again enjoy the blessings of Abraham?
In his book Religion and Politics, written during the German occupation of World War II, the Dutch Reformed theologian A.A. van Ruler put many of these things into powerful perspective His words are so picturesque and to-the-point that I will, in conclusion, quote them at length.(11)
The state gains its true essence through the church. The state is de-demonized through revelation. It is changed through the Word of God from the work and the dwelling of the gods into the servant of God. The demonizing of the state consists in its self-conception as the artifact and residence of the gods. So the state understands itself in heathendom. . . . Salvation really comes to pass when the state, through the mighty Word of God, is freed from the delusion that it is the artifact and residence of the gods, and that it is God Himself on earth, and from the unfruitful paralysis of this delusion arises to true service as the servant of God. And that happens not just once and for all. That happens permanently. The action of the church in the world is one continual witch-trial. By means of the unceasing proclamation of the truth, the world as the creation of God and the state as the servant of God are lent unceasing support. So is life preserved and saved. If the church falls away for one moment, than the state must sooner or later absolutize itself as God. And the last shall be worse than the first. If the demons turn back to the house from which they have been driven, then the breadth of the calamity cannot be imagined. These are things which… can easily be discerned in European history. One need only set the names of Constantine the Great and Clovis at the beginning and those of Lenin and Hitler at the end.
7. Remember this is nothing but a restatement of the classic orthodox Christian position. Of course I speak here only of a self-consciously committed Christian nation. I do not either wish to deny the validity of modern democratic institutions nor of those founded upon other religions. These are all valid and authoritative wherever they are established. But I do wish to emphasize that a Christian nation must submit to the rule of Christ and His representative on earth, the church, and it must do so along the lines I outline here.