Lawyers' Christian Fellowship

CHRISTIANS IN CONFLICT:

 SHOULD CHRISTIANS GO TO COURT?

This is the text of an address delivered by Dr Ross Clifford, Principal of Morling Theological College, a Baptist theological college in Sydney, presented on 24 March 1992.  The law is at stated at that date and no attempt has been made to revise this paper.

One of the leading theologians of this century is Karl Barth. It is alleged, he once had a conversation with a distinguished astronomer. During the course of their discussion the astronomer said, "You know Dr Barth, I think all of religion can be summed up in a simple sentence." This claim fascinated Barth who had spent a lifetime writing tomes on faith.. "What is that sentence?" Barth asked. The astronomer replied, "Do unto others as you would have them do unto you". Dr Barth responded, "You know I believe all of astronomy can likewise be summed up in a simple phrase". The astonished astrologer barked, "What phrase is that?" Dr Barth replied, "Twinkle, twinkle little star".

The issue before us tonight is not a simple one the resolution of which can be summed up in a single sentence or phrase like "twinkle, twinkle little star". It is complex. However, the issue is a contemporary one and must be addressed. When I served as a member of the Baptist Union Executive, we had before us possible law suits. As a pastor of a church, I had to counsel a number of members who were involved in legal disputes with Christians. As a lawyer I was instructed in such cases. And, of course, the recent Supreme Court cases where injunctions were sought to stay the ordination of women have brought the issue into the public domain.

Let us begin by examining what the Word of God says on the issue. In the Gospel of Matthew there are two important texts.

The first is Matthew 5:38-48 which belongs to Jesus Sermon on the Mount. Here we confront the Kingdom ethics of Christ and his radical principle of non-retaliation, something he perfectly lived out on the cross. His call is not to defend our personal property and rights. In Jewish law one could sue for another s coat, long undergarment; but one could not sue for the tunic that was the outer garment which the poor used as cover by night (Exodus 22:25-27). Jesus is saying here don t even recover the undergarment coat. Now Jesus is not in these few verses making a definite statement on Christians in court, but he is calling his disciples to forgo their rights. The reason being is that we are to show real love to all, even those who injure us (44). The Scriptures picture that those who love God will show the truth of that vertical relationship in their horizontal relationships with their neighbours. The non-retaliation principle evidences our love of God, our love of neighbour. As verse 45 indicates, such behaviour testifies to our being sons/daughters of our Father in Heaven. Even if we seek to confine these verses in Matthew to our dealings with the poor, they do mitigate against pursuing our claims through the civil courts.

The second passage in Matthew is chapter 18 verses 15-17. Jesus in this section sets out the proper procedure for resolution of disputes between Christians. Ken Sande is Executive Director of the Christian Conciliation Service of Montana and President of the National Association of Christian Conciliation Services, USA. In his excellent book, The Peacemaker (Baker) he, as have others before him, identifies four steps from the passage.

Step one in a dispute: the party who believes they have been wronged should personally confront the other party seek a private solution. Step two: if this fails the aggrieved party should take one or two others along. Step three: if still no resolution, "Tell the church" and let the church resolve it. Step four: if the one seen to be in the wrong is still unrepentant, treat that party as a non-believer perhaps expel the "brother".

Lynn Buzzard, former Executive Director of the Christian Legal Society in the United States and now a Professor of Law at Campbell University, co-authored with Laurence Eck the book, Tell it to the Church. Buzzard and Eck helpfully discuss this passage, and as they look at the verses that follow they identify three principles as to why Christians should resolve their own disputes. Let me put their principles into my own words.

• We have the power (v.18)
• We have the presence of Christ with us (v.20). He will aid us and give us strength
• We are to live out the parable of forgiveness (v.21-35).

In other words, if we look at Matthew as a whole, which I suggest is a good legal hermeneutical principle, and link verses 18-35 with 15-17 as the editor has done, we find why Jesus stressed dispute resolution should be within the Kingdom. I believe their point is sound, certainly as to verses 18-20.

The pivotal Scriptural passage is 1 Corinthians 6:1-11. New Testament scholar Gordon Fee in his New International Commentary on 1 Corinthians has the most comprehensive treatment of the verses. He suggests Paul has two "brothers" in mind - A had defrauded B in some way. To redress this, B took A before the civil magistrates at the bema (judgement seat) in the heart of the market place. The nature of the dispute is not known to us, let me suggest it was either a property matter or a sexual abuse matter which is the subject of the previous chapter.

Let s focus on verse 1 for a moment. Here we find three things. Firstly, Paul's anger over suits in civil courts - "dare he". Secondly, that a legal case is in mind whilst the word translated dispute here can refer to a general business affair, clearly in this context it refers "to a dispute that leads to litigation" (Orr and Walther, Anchor Commentary). And the word judgement can carry, as it does here, the sense of "going to law". Thirdly, that secular courts/judges are the ones being used. That is what the phrase ungodly or unrighteous means. Paul is not saying these judges are wicked and, in fact, in Romans 13 he supports the civil system, rather he is stressing they are not justified, righteous with God. They are not the saints.

Why was Paul so angry over Christians using civil courts? Such action breached a number of fundamental principles.

Firstly, the eschatological (last days) principle (v.1-4). In the last days the saints will judge the world (see Daniel 7:22)and even the angels. Angels here probably means fallen angels. If that is the case, surely we can handle trivial cases on earth or "mere matters of business" as some translations put it. And trivial is all they are compared to the role we will play in eternity. In short, Paul is saying start being the people of God now, live out your eschatology - realise it.

By the way, verse 4 is a difficult one. It can be read as the N.I.V. states, "Therefore, if you have disputes about such matters, appoint as judges even men of little account in the church". The better translation is "If such matters come up, are you going to take them to be settled by people who have no standing in the church?" (G. N. B.). The Good News translation is not denigrating civil judges, it is simply stating they have no standing in Christian disputes. As Martin Luther would indicate, their God given standing is in keeping order outside the Kingdom of God.

The eschatological principle Paul highlights in verses 1-4 demands that we judge and don t abdicate to civil systems.  Leon Morris concurs, "Paul recognises disputes between brethren will occur. But....that when a dispute arises it should be settled within the brotherhood" (1 Corinthians, Tyndale New Testament Commentaries).

Secondly, their civil suit breached the wisdom principle (v.5). Paul moves into sarcasm. "Is it possible that there is nobody among you wise enough to judge a dispute between believers?" Of course, we know how wise the Corinthians thought they were. Paul says shame find someone. Isn't Paul's question in verse 5 one many should consider today before litigation? As a matter of interest Leon Morris indicates, "to judge" here is an aorist infinitive with the meaning to give a decision, rather than conduct a trial.

Thirdly, the witness principle (v.6). As Fee documents the Christian community in going to civil magistrates was "airing its dirty linen in the public forum". Paul is heartbroken because this soils the name of Christ and harms the Gospel.

I have always wondered if Aussie mateship which sadly finds its home outside the church, does so because the public, court bickering between Christians in the 19th century turned people away from mateship with Christ and his people. As I read it, Manning Clark implies this in his history.

One of my favourite stories concerns a young man who came before a denominational committee that was determining whether he should be ordained. He was a member of a strongly reformed church. On the committee was an old legal layman who used to ask the same question of all the candidates. He would save his question till last. The young man had answered all the questions, and then our legal layman held court. Young man are you prepared to be damned for sake of the Gospel? The young fellow thought and said "Yes Sir, I am! In fact I prepared for this whole committee to be damned for the sake of the Gospel". What are we prepared to have damned for the sake of the Gospel - our rights, property, powers, points of law, theological positions. Was it not Montague who said words to the effect, "The things that matter most (for us the Gospel) should not be at the mercy of those that matter least".

Paul is at least saying, Christians before you go to court ask what this will do for the Gospel. Don t air your dirty linen in front of unbelievers. Do you remember the ancient sarcastic snigger from Julian the Apostate, "see how those Christians love one another!" When Christians say they love each other on the one hand and then willingly sue each other on the other, they break the law of contradiction, or as some call it non-contradiction. And the world knows it.

Fourthly, the defeat principle (v.7). Those who go to court show they are defeated. They are in danger of losing their eternal inheritance because of their lack of ethic (v.9). In versus 10 and 11 Paul adds others to his defeat list: sexually immoral, idolaters, adulterers. In Biblical ethics religion and morality are interwoven. In particular Amos 5:21-24 indicates God hates our religion/worship when we do live out his standards on the law and justice. Charles Hodge, Reformed Scholar and Professor of Theology at Princeton in the 19th century, in his commentary on 1 & 11 Corinthians has this to say on verses 9 and 10:

It is evident that among the members of the Corinthian church, there were some who retained their pagan notion of religion, and who professed Christianity as a system of doctrine and as a form of worship, but not as a rule of life. All such persons the apostle warned of their fatal mistake. He assures them that no immoral man, -no man who allows himself the indulgence of any known sin, can be saved. This is one of the first principles of the gospel, and therefore the apostle asks, Know ye not that the unrighteous shall not inherit the kingdom of God? Are ye Christians at all, and yet ignorant of this first principle of the religion you profess? The unrighteous in this immediate connection, means the unjust; those who violate the principles of justice in their dealings with their fellow-men. It is not the unjust alone, however, who are to be thus debarred from the Redeemer s kingdom- but also those who break any of the commandments of God, as this and other passages of Scripture distinctly teach.

The final principle in 1 Corinthians 6 is one we have already discovered in Matthew, the non-retaliation principle (v.7). Why not be cheated? Why not lose your powers? It is a better option than civil courts.

Paul finishes his tirade against these Corinthians by criticising those who, by their deeds, force people to consider action in the courts (v.8).

Let me say I approached our topic tonight as openly as possible. I had a belief that Christians should not be in court, but it was not an absolute one. I tried to place my presuppositions aside and listen to the Word of God. This Word I have found does not encourage legal proceedings between Christians. In fact it speaks strongly against it. It is not the Kingdom ethic. I suggest Scripture says Christians should not be in court because of the following 8 principles:

1. The non-retaliation principle
2. We have the power principle
3. We have the presence of Christ with us principle
4. The forgiveness principle
5. The eschatological principle
6. The wisdom principle
7. The witness principle
8. The defeat principle

There is no need for us to be in court as our Lord has offered an alternative for dispute resolution (Matthew 18). As F.F. Bruce (The New Century Bible Commentary I & II Corinthians) notes, this is to be expected as the Jewish people had their own process of resolution. It was the Greeks who went to public courts. Buzzard and Eck well document the Jewish alternative dispute resolution model from the days of Christ to our own era. They quote a rabbi from the 1st century:

In general where you find co-judges among the non-Israelites even if their judgements correspond to those of the Israelites, you are not justified in uniting with them. . . Whoever leaves a judge of Israel and goes before a foreigner has denied God and denied the law.

Leon Morris and Charles Hodge refer to the Rabbinical maxim:

It is a statute which binds all Israelites, that if one Israelite has a cause against another, it must not be prosecuted before the Gentiles.

Let me now deal with some of the worthwhile arguments given by those who seek release from Matthew and 1 Corinthians.

Argument 1. Paul lived in a world that did not have the heritage of our Christian common law. Our laws, judges (perhaps) structures are more overtly Christian. So our legal system with its Christian base is suitable for resolving disputes between Christians. Perhaps this kind of outlook led to the Privy Council being the final court of appeal from the ecclesiastical courts of England. The problem with this argument is that Paul s complaint was not about the "quality" of the judges or the law of his day. He respected the law (Romans 13). He was saying do not go to court because of the witness principle, eschatological principle, non-retaliation principle etc. The Christian nature of our legal system helps ensure justice for the Kingdom of Man, but has nothing to do with the Kingdom of God. Those who raise this argument have missed the point.

Argument 2. That Paul used civil courts for the sake of his mission as seen in Acts Chapters 24-25, and his appearance before Felix. He appealed to Caesar. So when our mission as Christians is at stake, we can go to court. This argument has much to commend it. If those outside the Kingdom advocate religious persecution, deny freedom of speech or legislate against human rights, we have the right to speak out. However, the Acts passages have nothing to do with disputes between Christians, nor do they relate to internal disputes within the church that hinder mission. To use such passages as justification for Christian law suits of any kind is to dismiss the strong verses of 1 Corinthians 6 and replace them with a weak case. It is using Scripture to support a position - special pleading - and it is faulty exegesis at best.

Argument 3. 1 Corinthians 6 is limited to property type disputes and has nothing to do with broader issues. My problem with this argument is twofold. It fails to do justice to the Matthew texts which are broad. It is suggesting 1 Corinthians 6 is only a moral rule - do not sue over property or the like. However, although I believe Paul acknowledges there is a specific issue involved here, he does not identify it. Clearly, his emphasis is not on some specific case giving a rule for such, rather he is going beyond the specific to give binding moral principles for Christians in general. He uses the case at hand to drive home general Kingdom principles.

I want to now briefly explore what theologians in the past have said about Christians in court. I hold as a legal hermeneutical principle we should listen to those who were close to the time of Christ and Paul and see how they interpreted their words, the documents. (The principle relied on here is "user under Ancient Documents" - one should consider the "contemporaneous interpretation" or "contemporanea expositio".) The early Fathers did not have much to say, and it would be fair to say our endeavours tonight are not matched by great historical precedent.

A. The Didache or "The Teaching" was probably written between AD12O-180. Many believe its origins are a Christian Community in Egypt or Syria. It was respected by the early Church Fathers. It speaks of a way of life and its stress is on love of neighbour and blessing those who curse you. It has no place for the assertion of rights, rather lose yourself for the Gospel. Further it says this, "Do not cause divisions, but make peace between disputants. Judge justly" (4:3).

B. Ignatius was the second "bishop" of Antioch, and he wrote seven letters in about 11OAD. He wrote on his way to Rome to be torn apart by wild beasts. The theme of his letters is the unity of the church. In his letter to the Ephesians he relies on Paul, "Let us be eager to be imitators of the Lord, to see who can be most wronged, defrauded" (cf. 1 Corinthians 6:2).

The writer of The Didache and Ignatius are arguing for the settlement of disputes and forsaking personal rights.

C. Clement of Alexandria lived from 155-200. He is the first known Christian scholar. He was an apologist against the Gnostics. Let me highlight a couple of his sentences where he expounds 1 Corinthians 6.

For it is not only the judgement of those who have wronged him that the apostle requires the virtuous man to leave to others.. .And how could one judge the apostate angels if he is himself an apostate from the gospel rule that we are to forgive injuries (Stromateis, VII - On Spiritual Perfection, 85).

Clement sees Paul as endorsing non-retaliation and non action.

D. It is interesting to move from the early Church Fathers and see how the Reformers viewed it. Martin Luther exhorted:

From all this we gain the true meaning of Christ s words in Matthew 5:39, "Do not resist evil," etc. It is this: A Christian should be so disposed that he will suffer every evil and injustice without avenging himself; neither will he seek legal redress in the courts but have utterly no need of temporal authority and law for his own sake. On behalf of others, however, he may and should seek vengeance, justice, protection, and help, and do as much as he can to achieve it...

Be certain too that this teaching of Christ is not a counsel for those who would be perfect, as our sophists blasphemously and falsely say, but a universally obligatory command for all Christians. Then you will realise that all those who avenge themselves or go to law and wrangle in the courts over their property and honour are nothing but heathen masquerading under the name of Christians. It cannot be otherwise, I tell you. Do not be dissuaded by the multitude and common practice; for there are few Christians on earth have no doubt about it.
(Temporal Authority: To what extend it should be obeyed)

John Calvin is one who thought it could be otherwise. No doubt this in someway can be traced to his view of Church and State, but that s another topic. In the Institutes of the Christian Religion he explained:

The usual objection, that law-suits are universally condemned by Paul (1 Cor. vi. 6), is false... Paul rebukes them, first for traducing the gospel to unbelievers by the intemperance of their dissensions; and, secondly, for so striving with each other while they were brethren. For so far were they from bearing injury from another, that they greedily coveted each other s effects, and voluntarily provoked and injured them... Christians should always feel disposed rather to give up part of their right than to go into court, out of which they can scarcely come without a troubled mind, a mind inflamed with hatred of their brother. But when one sees that his property, the want of which he would grievously feel, he is able, without any loss of charity, to defend, if he should do so, he offends in no respect against that passage of Paul.
(Institutes, Book IV, XX,21)

Calvin's openness to civil litigation is not without its checks. In the passage cited he says it must be done in charity. In his commentary on 1 Corinthians 6 he again affirms the right to litigate, but acknowledges it is not an absolute right. In fact, after considering the conditions he places on civil litigation, I believe he is not that distant from Luther and the other theologians we have mentioned. Calvin warns:

If, therefore, a Christian man wishes to prosecute his rights at law, so as not to offend God, he must, above all things, take heed that he does not bring into court any desire of revenge, any corrupt affection of the mind, or anger, or, in fine, any other poison. In this matter love will be the best regulator.

If it is objected, that it very rarely happens that any one carries on a law-suit entirely free and exempt from every corrupt affection, I acknowledge that it is so, and I say farther, that it is rare to find a single instance of an upright litigant; but it is useful for many reasons to show that the thing is not evil in itself, but is rendered corrupt by abuse.

In summary, what should be the Christian s position/doctrine on Christians in court? I believe the Scriptures hold we should not be in civil courts against each other. This interpretation, on the whole, is how the early theologians viewed it and it is how the Jewish community lived. These two groups give us our "safest" interpretation of the texts.

The above position is supported by modern writers on the subject. We have already referred to Sande and Buzzard. US Lawyer and former Judge William Bontrager asserts, "the normal result of litigation outside of God s rules is a potential defeat for us (1 Chr. 6:7), may wrong others (1 Cor. 6:8), may imprison us (Matthew 5:25-26), and may consume us (Galatians 5:15)." Our own Alan Keishaw, Solicitor and Graduate of Regents College writing in Southern Cross affirms, "In a society which is keen to enforce rights and which delights in divided church, this teaching is difficult to hear and obey. But difficult or not, it reflects the radical nature of Christian discipleship." (August 1988). Paul Erb concludes, "The Christian then should stay out of the law courts because the usual spirit of the place is foreign to the loving fellowship of Christian brotherhood" (The Mennonite Ouarterly Review, XIII, April 1939, 2).

Are there tough cases that call for exemption from the basic Scriptural principles? I believe so, as some of our structures in society are different today. Further, this is a fallen world and at times our basic principles have to be subjected to "the lesser of two evils" rule. An example of this is the principle one should not lie. However, in World War II those who were protecting "Jews" were confronted by German soldiers asking if they were hiding anyone they lied and said "No!" The lie was the "lesser of two evils". Sande mentions some possible exemptions and I will elaborate on three of them. The first is when Matthew 18:15-17 has been adhered to and one can identify a party in the wrong. If there is no repentance and the church has decided the issue, and has expelled "the wrongdoer", then legal action could be considered. However, to treat "the wrongdoer" as a "pagan" does not automatically give one the right to sue (see 2 Corinthians 2:5-11). The basic principle of non-retaliation still applies. There would have to be a powerful overriding situation that demanded legal action (e.g. rights of a child). And the plaintiff would have to be sure of their motives and what impact the suit would have on our witness. The second is in relation to some insurance claims as Christians do not have jurisdiction over insurance companies. (For example, a passenger is seriously injured as a result of the driver s negligence. The injured party faces substantial medical bills and has a family dependent on them.) Even so, all should be done to ensure the claim is resolved in a Biblical manner. The third is where the only issue in dispute is the interpretation of law. Sande asserts, however, that a declaration should only be sought where there is no animosity between the parties. The essential principles of witness, non-retaliation still apply. The said Mennonite Ouarterly Review cites a marvellous story:

One day a misunderstanding arose between two neighbours concerning their boundary line. They discussed the matter and tried in every way to come to a proper understanding. But they failed to agree, and rather than allow any ill-feeling among themselves, they decided to refer to the court and abide by its decision.

The day for the trial arrived and the farmer who lived farthest away, called David, came by where he found John, the other, hilling his potatoes.

"Come, John," said David, "let us go to the court".

"These potatoes will suffer if they are not hilled today", replied John; "You go to the court and tell the story. You know all about our differences and can tell them as well as
I. First put your side before the court, and then mine.

Stop on your way home and tell me the verdict".

So David went on alone, down the mountain side into the
valley where the court held forth.

That evening at dusk David came plodding back up the mountain path. "Well, brother", he said, as John came to meet him halfway, "I went to court and put both sides before them, and the court decided in your favour".

And David continued on his way humming a little folk melody.

And let me add a fourth. Matrimonial disputes, after proper mediation will obviously require court sanction. However, the parties should seek to resolve the issues outside of the court.

If not the courts, how do Christians resolve disputes? The answer, of course, is given by Jesus - mediation. Our denominations have their own internal procedures. Further, in Australia we already have Unifam and other like organisations, but much more is needed. In the United States the Christian Legal Society has set up over 30 such centres and they have produced suitable arbitration documents and procedures. They have resolved disputes for a wide range of people including James Robson and Josh McDowell. A former Chief Executive of the Christian Legal Society and prominent lawyer Samuel Erricson says, "It is foolishness of the highest order to think that the secular system will produce better results than competent, godly arbitrators" (Christianity Today, May 27, 1991). In 1982 the Chief Justice of United States Supreme Court, Warren Burger, stated:

One reason our courts have become overburdened is that Americans are increasingly turning to the courts for relief from a range of personal distresses and anxieties. Remedies for personal wrongs that once were considered the responsibility of institutions other than the courts are now boldly asserted as legal "entitlements". The courts have been expected to fill the void created by the decline of church, family and neighbourhood unity.
(Ken Sande, The Peacemaker, p.38)

In conclusion, most of my legal friends are pragmatists. If there is a case we will take it. If there are theological principles involved we tend to divorce them from the "real world". In short, Christian faith is often confined to Sunday observance, pietistic behaviour and beliefs about God. Like the housewife, doctor, clerk, we struggle to apply the commands of the Gospel to our everyday life. It s the faith problem of the 20th century.

The Living Christ, calls us afresh to reassess ourselves, our ideas, our concept of how to resolve disputes, our sense of what is appropriate. To place everything under His Lordship:

If anyone loves me, he will obey my teaching. My Father
will love him, and we will come and make our home with him.
He who does not love me will not obey my teaching (John
16:23-24a).

To be a Christian lawyer is different. Christ even controls the way we practise. It s radical discipleship. It s hard and costly. It requires the grace and power of God.

As the prayer of Francis Assisi pleads:

Lord, make me an instrument of your peace.
Where there is hatred, let me sow love,
Where there is injury, pardon,
Where there is doubt, faith,
Where there is despair, hope,
Where there is darkness, light,
Where there is sadness, joy.
0 Divine Master, grant that I may not so much seek to be consoled as to console, not so much to be understood as to understand, not so much to be loved, as to love; for it is in giving that we receive, it is in pardoning that we are pardoned, it is in dying, that we awake to eternal life.