Case-Law

Philip: I came to ask you for advice; this is my very first duel.

They don’t exactly cover this subject in boarding school.

Hamilton: Did your friends attempt to negotiate a peace?

Philip: He refused to apologise; we had to let the peace-talks cease.

Hamilton: Where is this happening?

Philip: Across the river, in Jersey.

Both: Everything is legal in New Jersey.

Hamilton (2015)

A while ago, my supervisor and I were for some reason having a conversation about duelling. The question posed was whether, if a person in today’s Britain was killed in a duel, in which he or she had consented to participate on the terms that it might result in death, and everybody involved was totally fine with that as an outcome because honour had been satisfied and all, would there be any premise for legal action against the other dueller?

A duel, perhaps.

Well, we didn’t know, but as fortune would have it, I know somebody I knew would know, or at least strongly anticipated would, and what do you know, when I asked her during the next phone conversation we had, she did indeed know. Apparently a person is not legally considered to be able to genuinely consent to injury beyond Actual Bodily Harm, so a person who killed someone else in a duel, or indeed injured him or her to a grievous degree, would be culpable for having done so.

Would it be murder? I queried; apparently that would depend on other factors. But duelling is legal? I asked; and yes, apparently it is, although it’s illegal to use weapons in a public place. So you could have a duel with weapons if you did it at home? I inferred; and yes, apparently you could, provided you had all the proper documentation for owning the weapons. Or you could have a duel in public if it was just hand-to-hand? I added; and yes, theoretically you could, although if you didn’t make it blooming clear that a duel’s what it was, you’d probably end up getting arrested anyway (tends to happen when you start beating someone to a pulp in the street, I guess). And if you injured your opponent, but not too badly, there’d be no legal ramifications? I asked. (I was asking in a purely abstract, theoretical way, of course, out of nothing more than pure curiosity, though I realise that by saying that I only make it sound as if I actually wasn’t; perhaps the fact that I’d doubtless be utterly flattened by pretty much anyone in any sort of duel one might conceive of, constitutes the best evidence that I wasn’t making these inquiries for any practical purpose at all.) At this point, my knowledgeable source decided to move into the colourful world of case-law for some potentially useful examples. In one case, she described, a woman was deemed capable of consenting to an injury imposed by her lover, because he had branded her with something symbolic of their relationship; because it was believed that the thing had been done to show love, the consent was deemed valid. In another case, she continued, a society of sado-masochists had been deemed incapable of consenting to the damage they had been inflicting on one another’s bodies, because it was done purely for the sake of causing the pain. So, whether an injury sustained in a duel was considered to have been validly consented to or not would probably depend on the precise reasons on whose account it was sustained.¹

There are a lot of laws in this country, but no matter how many laws you make, they can never cover absolutely every scenario that human imagination and circumstance might bring about. The laws as they’re written lay down some principles, but once you start dealing with specific, individual situations, you’re going to have to move beyond those principles alone, and attempt to form such additional substructures as most closely align with the values they espouse. Having other specific examples with which your own might be plausibly compared – case-law, in other words – will doubtless be a big help.

One thing I think Christians often forget about the Biblical Law is that it’s quite like that. It doesn’t tell you everything. It can’t cover absolutely every scenario that human imagination and circumstance might bring about. It lays down some principles, but once you start dealing with specific, individual situations, you’re going to have to move beyond those principles alone, and form such additional substructures as align most closely with the heart of God.

At this point you may be shifting uncomfortably. Isn’t that exactly what Jesus condemned the Pharisees for doing – laying on the burden of all these extra rules added to those actually revealed in the Torah?² Isn’t it true that the Bible tells us everything we need to know about life and godliness?³ Isn’t it vital that we maintain a principle of sola scriptura and don’t treat traditions and church literatures as if they were inspired as well?⁴

And yes, a hearty yes to all of those. But the thing is, O Legalism-Averse Reader, I bet you anything that, if you’ve been following Jesus for more than five minutes, you’ve already moved beyond the basic substance of scripture with respect to the behaviours you expect of yourself, due to nothing more than mere practical necessity. The Bible tells us to withdraw to our own space and pray, but it doesn’t specify how often, or for how long. It tells us to avoid sexual immorality, but it doesn’t specify which particular acts are reserved for the union of marriage. It tells us to give generously to our brothers and sisters in need, but it doesn’t specify how much of our income ought to go to that compared with how much we spend on frivolous treats for ourselves.⁵ In order to have an action plan for what you’re actually going to do about these commands, therefore, you’ve had to form additional substructures alongside the principles laid out in scripture.

Yes, you may protest, but righteous living isn’t about working out rules and limits and sticking to them, as if one could find righteousness in doing that instead of in Christ who alone lived the kind of life that God requires of his servants; it’s about where your heart is, about acting out of love for God and neighbour. And of course you’re right, of course it is, and if you think that’s incompatible with forming the additional substructures, you haven’t understood what I’m trying to say. One can’t avoid forming substructures of some sort, because the Bible doesn’t deal with every specific scenario you’re going to encounter in your day, and you have to have some way of deciding how to respond to these different scenarios. What you’re really advocating – and, I hasten to add, what I am too – is simply forming those substructures in such a way as to best reflect the heart of God as revealed in scripture, knowing that that, and not the substructures themselves, is the important thing.

What scripture gives us is principles, and sometimes also case-law. Case-law demonstrates the application of a principle in one specific scenario, so as to illustrate by analogy what it might look like to apply it in other scenarios. I think the idea that the rest of the commands in the book of Exodus are basically case-law for the Ten Commandments is a very helpful one. Consider, as a fairly random example, the laws about oxen goring people in Exodus 21: we have here, I think, some case-studies that, among other things, illustrate the application of the principle of ‘you shall not murder’:

When an ox gores a man or a woman to death, the ox shall be stoned, and its flesh shall not be eaten, but the owner of the ox shall not be liable. But if the ox has been accustomed to gore in the past, and its owner has been warned but has not kept it in, and it kills a man or a woman, the ox shall be stoned, and its owner also shall be put to death.⁶

This is a Texas longhorn, apparently. Could probably do some serious goring if it wanted to.

All right, so murder is punishable by death, but what if somebody didn’t deliberately kill someone else; rather, his property was responsible for that person’s death? Well, it’s not the owner’s fault – unless he should have known this was likely to happen, in which case he’s liable for the usual penalty. And either way, the lethal piece of property should be disposed of so as to prevent the same thing happening again (indeed, as a side note, if you’ve been killing all the oxen that gore anybody, you should never have to deal with the problem of oxen that are ‘accustomed to gore’ anyway).

Do you see what I just did? I extrapolated back from the case-study to get a fuller grasp of what the principle entails, and so a better idea of how it might be applied in other scenarios. It’s very much like extrapolating back, in UK law, from the case-study of the branded woman, or the sado-masochists, to get a fuller grasp of the principle of to what degree it’s possible to consent to injury, and so a better idea of what might happen in the case of someone injured in a duel. The case-law isn’t just there for its own sake: it demonstrates how the principle works in practice.

If I might take another example from the Law, this time from Deuteronomy, because I think this matter is important:

If there is a betrothed virgin, and a man meets her in the city and lies with her, then you shall bring them both out to the gate of that city, and you shall stone them to death with stones, the young woman because she did not cry for help though she was in the city, and the man because he violated his neighbour’s wife. So you shall purge the evil from your midst. But if in the open country a man meets a young woman who is betrothed, and the man seizes her and lies with her, then only the man who lay with her shall die. But you shall do nothing to the young woman; she has committed no offence punishable by death. For this case is like that of a man attacking and murdering his neighbour, because he met her in the open country, and though the betrothed young woman cried for help there was no one to rescue her.⁷

So this is basically case-law for ‘you shall not commit adultery’. Let’s extrapolate back: the concern here, the thing that these specific case-studies show they think is important, is actually nothing less than the woman’s sexual consent. The whole city versus country thing is just a case-study illustration of circumstances that might demonstrate whether that consent was there. It clearly wouldn’t be inkeeping with the spirit of this law to execute a woman raped in a city because, although she cried out, nobody came to her aid; or because her attacker prevented her from crying out; or because she was just too scared to do so. Likewise, if it happened in the countryside but both parties consented, then both would be liable for the appropriate penalty. And furthermore, if a woman sexually assaulted a man, it wouldn’t align with what this law says to hold the man responsible.

Again, do you see what I’m doing? The words on the page give a couple of what-ifs; the reader’s job is to work out what they reveal about the principle behind them, and apply that principle in the case of other what-ifs. Adelphoi, let’s not let the long lists of laws in the Pentateuch bore us (because they seem to deal with such random, irrelevant scenarios) or scare us (because they sometimes, at first glance, seem to suggest crazy, immoral things like executing a woman because she was raped in a city); instead, let’s read them as case-law that sheds light on what obeying the greatest commandments of loving God and neighbour actually looks like in practice. Let’s read them as case-law that reveals the character of the Lawgiver – who, unlike the myriad humans who’ve helped put together the UK legal system over the years, is perfectly, wonderfully, awesomely just and good – and teaches us to love and serve him ever better.⁸

Footnotes

¹ I’ve written all this down purely from what I remember of our conversation, so I take full responsibility for any inaccuracies. If you want to know for absolutely certain what the law allows, best do your own research rather than taking my word for it.

² Good old Matthew 23 for that, of course: https://www.biblegateway.com/passage/?search=matt+23&version=ESVUK. If you’d like more of my thoughts on Pharisees and legalism, I’m rather pleased with my post ‘I pharisee 2: Too Legit to Quit’, under ‘2016’ then ‘May’ in the box on the right.

³ The phrase is from 2 Peter 1:3, it turns out, https://www.biblegateway.com/passage/?search=matt+23&version=ESVUK, though I think it came to my mind via Beautiful Eulogy’s ‘Symbols and Signs’: https://www.youtube.com/watch?v=E9SNpWFU4_w.

⁴ Do you want a really depressing example of people treating church literature as if it were inspired? I was told of a case recently where someone may end up being refused wine at communion because it’s technically specified in Church of England regulations that all communion wine has to contain alcohol. I kid you not; here’s the report on the matter: https://www.churchofengland.org/sites/default/files/2017-12/non-alcoholic%20wine%20and%20gluten%20free%20bread.pdf. You know, this jazz makes me angry enough to have a duel with someone.

⁵ Try Matthew 6, https://www.biblegateway.com/passage/?search=Matthew+6&version=ESVUK, 1 Corinthians 6, https://www.biblegateway.com/passage/?search=1%20Corinthians+6&version=ESVUK, and 2 Corinthians 9, https://www.biblegateway.com/passage/?search=2+corinthians+9&version=ESVUK, because why not.

⁶ Whole chapter: https://www.biblegateway.com/passage/?search=ex+21&version=ESVUK. And of course you can just click back one chapter for the Ten Commandments.

⁷ Again, whole chapter: https://www.biblegateway.com/passage/?search=Deuteronomy+22&version=ESVUK.

⁸ Just realised I wrote this entire post without specifying anywhere that, if we’re in Christ, we don’t need to worry about putting the entire contents of the Mosaic law into practice, only the principles of what God cares about that we learn from it. #notmycovenant