Where does "Government" get the Power to Make and Enforce Law? Home

Where does "Government" get the Power to Make and Enforce Law? The other day a man I respect balked at my suggestion that every individual has the right to punish a murderer. "No," my friend said, "that's government's job." Obviously, this response ignores the right to self-defense and the right to the defense of others, legal concepts that allow the individual to use deadly force to prevent murder, his own or that of another. It also begs the question. Where DOES government get the power to punish a murderer, or even to make laws prohibiting murder? To answer this question we need to remember the ideas of the great Christian thinkers who articulated the principles that create free and limited government in the centuries between the Reformation and the American Founding. These ideas are fairly well summarized in our Declaration of Independence. Paragraph two of the Declaration tells us: We hold these truths to be self-evident, 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 - That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Most of the Declaration's second paragraph is drawn from John Locke's Second Treatise on Government, in fact, part is quoted almost verbatim. Locke explained that government derives its just power from citizens by DELEGATION. Government can not acquire any power - such as the power to punish murderers - if the citizens do not possess that power themselves before they institute the government. This is one of the main ideas that limits the scope of government. Specifically concerning the right of individuals to enforce God's law of our human nature before any government is set up, Locke said: And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man's hands, whereby every one has a right to punish the transgressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world be in vain, if there were nobody that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders. And if any one in the state of nature may punish another for any evil he has done, every one may do so: for in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do. The phrase "the state of nature" in Locke's quote means before any government is established among individuals. But, you may say, paragraph one of the Declaration stakes our claim to freedom and independence on "the Laws of Nature and of Nature's God", an English legal term of art that means the "eternal immutable rules of right and wrong to which God Himself conforms....found only in the Bible." If the Bible does not give individuals the right to enforce God's natural law then both Locke and paragraph two of the Declaration are all wet. Of course, the Bible does give individuals the right to enforce God's natural law. In Genesis 4:15 we read that after killing his brother Able, Cain told God "Behold, Thou hast driven me this day from the face of the ground; and from Thy face I shall be hidden, and I shall be a vagrant and a wanderer on the earth, and it will come about that whoever finds me will kill me." For His own purposes, the Lord showed mercy on Cain by appointing a sign for him and promising to take vengeance on anyone who killed Cain. As the Lord intended, Cain went on to father an ungodly line that eventually seduced the godly line from Seth and led to the Flood. But the Bible gives us a lesson that failing to punish murderers does, indeed, lead to even more crime in the form of Lamech, who decided that if Cain could get away with murder he could, too. See Gen.4:23-24. Most importantly, God commanded capital punishment in His covenant with Noah in Gen. 9:6 when there were only 8 people left alive after the Flood, before any civil government had been established. Thus we see that Locke and our Declaration do indeed follow Scripture in saying that the source of government's power to "bear the sword" and be "an avenger who brings wrath upon the one who practices evil" is the right to punish murder possessed by the citizens themselves. And this makes sense. CS readers know rights come from moral obligations. Both the right to life and the right to prevent and punish murder come from the moral obligation not to murder. This obligation is imposed by God on all human beings through both God's natural and revealed law. So why do we need government? After all, if citizens can enforce God's moral law, why do we hire agents and call them "governors" to do it for us? Again, we find the answer in Scripture, in Ex. 18:17-23. We establish government to have the benefit of deliberation - more than one man making the decision based on evidence given by sworn witnesses - and to avoid a man being a judge in his own case, with the bias that would entail. This, too, was explained by Locke in the Second Treatise, and other Christian scholars agree. It is the root of our ideas of federalism and internal checks and balances on government, as well. So what? The reason this question is important is because it helps us to understand a critical concept in Christian government: the "Rule of Law." To the secular world this phrase means that citizens must blindly follow whatever law is made by the current government. In reality, this phrase means that both those who wield the power of government and those who are governed are bound by the same moral law. The notion that kings were not absolute, that they had to obey the same moral law from God as ordinary citizens, is the only reason that kings were ever abolished. Once English citizens understood this idea they would no longer stand for a king who claimed to have a "divine right" to do whatever he pleased. They deposed and executed Charles I, and carried out a bloodless revolution to depose James II, finally putting parliament over the power of the king. The Rule of Law, in its correct meaning, is also the only idea that can stop tyrannical government. And make no mistake, citizens who do not understand the idea behind the Rule of Law will elect tyrants - leaders who follow their whims, not God's law - just look at the United States of today. This is the lesson of 1Sam. 8. And that leads to the final point. What do we do when government stops punishing murderers? Locke said the power to execute God's natural law reverts to the citizens when government fails to do its duty. The Declaration says we "alter or abolish" a bad government. But how is that accomplished? More to the point, can it be done without shedding the blood of the wicked? Could there have been a Glorious Revolution of 1688 if it had not been preceded by the bloody Puritan Revolution of the 1640s? Was the French Resistance in WWII wrong to kill Nazis and Vichys after France fell to the Germans in 1940? Ditto for the Dutch, Norwegian, and even German resistance. Did God hand the promised land to the Israelites or did he make them fight for it, against what some spies called "tall" odds? Was slavery ended without bloodshed? Can couch potato Christians, who aren't willing to witness let alone fight, stem the tide of evil that is sweeping across America? Will our peaceful tools of prayer and witnessing ultimately lead to a violent confrontation if they are successful and the wicked become desperate? Does God intend that man's own force should punish the wicked in this world? As Peter and John said (Acts 4:19), you have to supply those answers for yourself. This is what's at stake.