What Is Equity?
November 29, 2000

By the Rev. Peter J. Wallace

Our Confession of Faith states that God gave Israel "sundry judicial laws, which expired together with the State of that people; not obliging any other now, further than the general equity thereof may require" (19.4). Nearly every issue that the General Assembly faced this year involved the problem of equity. Probably every presbytery and session in the Orthodox Presbyterian Church will make decisions based on equity many times this year. But what exactly is equity? In many respects, it has become a lost concept as American culture moves more and more towards a legal orientation. Unfortunately, the American Reformed churches have also become more and more law-oriented and have forgotten the concept of equity.

A common dictionary defines equity as "fairness; impartiality; justice," but we only begin to understand how it functions in our Confession when we understand this together with the third definition: "A system of doctrines supplementing common and statute law."(1) In a legal context, equity means, "how do you figure out what to do when the law does not apply?"

A recent example of equity and its neglect in America may be found in the Florida court decision which declared that Secretary of State Katherine Harris had discretion in the matter of whether or not to accept the hand recounts from certain Florida counties. Since there was no statute law that applied to that particular situation, she, as the highest state official overseeing the election, had to exercise equity (discretion) in her judgment. The ensuing legal hullaballoo simply demonstrates that equity is a lost concept in American culture.

1. A Historical Note

The Westminster Divines lived in a legal context in which law and equity were clearly distinguished. In the late middle ages, the English court system had become separated into two types of courts: law courts and equity courts.(2) The law courts decided cases according to the Common Law. If no statute law clearly applied, the common law judge was required to make his decision according to the nearest applicable law. No discretion was permitted to the common law judge. Obviously, this frequently led to injustice-especially when the law was not intended to be used for such cases. But if a man believed himself to be wronged, he could appeal to the Court of Chancery, where the Chancellor would decide his case (other equity courts included the Mayor's Court in London and courts of request throughout England). In fact, as Plucknett puts it, "The judges had to admit in several cases that their rules actually favoured iniquity at the expense of the righteous, and themselves advised the chancellor to give equitable relief."(3) The Chancellor was not bound by the Common Law. He was bound merely by equity-a system of principles of justice that enabled him to decide a case when the law did not directly apply. A good Chancellor had to train his conscience in these principles so that he could make wise and equitable decisions. Naturally his decisions would often be controversial (and he would frequently be accused of twisting the law), but few people objected to the system itself because all agreed that there had to be some place for equity. Invariably there are times when the law does not directly apply, because no law has ever been devised that covers every conceivable situation.

The key to understanding equity is conscience. Christopher St. Germain (English barrister, 1460-1540) argued that "the circumstances of human life are so infinitely various that it is impossible to make a general rule which will cover them all."(4) In an influential set of dialogues, St. Germain argued that equity based upon conscience is necessary for any legal system to preserve justice. Those who exercise equity must train their consciences in the principles of justice found in the Word of God. In this argument, St. Germain took a principle of medieval canon law and inserted it squarely within the civil law.

John Calvin, who had been trained within the continental legal system which required all judges to exercise equity, made a similar point. In his commentary on 1 Corinthians 6:2, Calvin stated that "between expertness in judging and other arts there is this difference, that while the latter are acquired by acuteness of intellect and by study, and are learned from masters, the former depends rather on equity and conscientiousness."(5) Lawyers are useful for understanding obscure questions of law, but not for judging. Equitable judgment can only be rendered by a conscience trained in the Word of God.

Indeed, this understanding of equity was applied by the reformers to the relationship between the Mosaic judicial law and the laws of modern nations. With respect to the Old Testament judicial laws, Calvin declares that they impart "certain formulas of equity and justice," but that just

as ceremonial laws could be abrogated while piety remained safe and unharmed, so too, when these judicial laws were taken away, the perpetual duties and precepts of love could still remain. But if this is true, surely every nation is left free to make such laws as it foresees to be profitable for itself. Yet these must be in conformity to that perpetual rule of love, so that they indeed vary in form but have the same purpose.(6)

Then Calvin makes a key distinction between law (or constitution) and equity:

Equity, because it is natural, cannot but be the same for all, and therefore, this same purpose ought to apply to all laws, whatever their object. Constitutions have certain circumstances upon which they in part depend. It therefore does not matter that they are different, provided all equally press toward the same goal of equity. It is a fact that the law of God which we call the moral law is nothing else than a testimony of natural law and of the conscience which God has engraved upon the minds of men. Consequently, the entire scheme of this equity of which we are now speaking has been prescribed in it. Hence, this equity alone must be the goal and rule and limit of all laws.(7)

Calvin insists that so long as the laws of a nation are consistent with equity-which here is defined as the moral law inscribed upon the conscience of all men-then laws may vary from nation to nation. The conditions of different nations must be taken into account when laws are drafted and put into effect.

Francis Turretin, like usual, made careful distinctions between the aspects of the judicial law that were abrogated and those that were retained. "As it was a distinction of the Jewish state from the Gentiles and a type of the kingdom of Christ, it is simply abrogated because there is no longer any distinction between the Jews and the Gentiles in Christ."(8) But those aspects of the law which have moral and universal application may be retained. Nonetheless, Turretin warns that "in the laws founded upon the common right or the law of nature, the substance of the precept must be distinguished from its circumstances."(9) Therefore care must be used in applying the judicial laws since their distinctive role as types of the kingdom of Christ so frequently is intermingled with the universal principle. Just because God gave these laws to Israel does not mean that these laws are good for every nation (Turretin gives lists of laws such as levirate marriage, the Jubilee, selling sons and daughters, etc., which have no perpetual use). Indeed, Turretin claims that Roman law may often be preferred to Mosaic law because much of Roman law is "derived from natural and common right...[and] can be more suitable to places, times and persons."(10) In other words, Turretin's concern is for the equity of the law (which may be found in various law codes), since the particular statutes are no longer binding.

2. The Westminster Divines

The Westminster Divines wrote their famous statement about "general equity" in this context:

To them also, as a body politic, he gave sundry judicial laws, which expired together with the State of that people; not obliging any other now, further than the general equity thereof may require. (Confession 19.4)

The judicial laws of Israel have expired. In other words, they do not apply directly to any other nation. In the context of English common law courts and equity courts, the principle is clear: we must not approach the Mosaic judicial law as common law courts, but as the court of chancery-through equity. Therefore, while the principles of justice are still valid (and indeed, an equitable judge must train his conscience in those principles) none of the Mosaic judicial laws simply transfer over to the modern state.

It is useful to examine the way in which the Westminster Divines themselves used the judicial laws of the Old Testament in the Larger Catechism. Questions 98-148 examine the Ten Commandments, and the Divines occasionally cite particular judicial laws as proof texts. It should be noted that out of the more than 800 passages that they cite as proof-texts for this section, only 50 or so are taken from the judicial laws of Moses. I have chosen a few of these as examples, which I believe reflect the usage of equity approved by the Westminster Divines. Many of the judicial laws cited would fit into Turretin's category of typological laws which point to the kingdom of Christ, and there is no indication that the Divines thought of them as perpetually binding. Rather, they illustrate equitable principles of justice, and those principles are binding.

Q108-"The duties required in the second commandment are, the receiving, observing, and keeping pure and entire, all such religious worship and ordinances as God hath instituted in his word; particularly prayer and thanksgiving in the name of Christ; the reading, preaching, and hearing of the word..." For the last phrase the Divines cited Deuteronomy 17:18-19, which required the king to read the law of God. The equity of this law, according to the Divines, was that all Christians are to read the Word of God. Since no other place in Scripture requires believers to read the Word of God (the emphasis was on hearing, since few believers could afford their own copy), the Divines made an argument from equity. Since all Christians are prophets, priests, and kings in Christ, therefore it is incumbent upon all Christians to read the Word of God.

Q109-"The sins forbidden in the second commandment are, all devising, counselling...any religious worship not instituted by God..." For "devising" the Divines cite Numbers 15:39, which states that the reason for the Israelites making tassels on their garments is to remind them not to "seek after your own heart." In this case, the Divines are not arguing that the law regarding tassels should be literally enforced. Rather, they are making an argument from equity based upon the principles of justice enshrined in the law. For "counselling" the Divines cite Deuteronomy 13:6-8, which required the Israelites to put to death even one's own wife if she counseled idolatry. For the Divines, equity did not require the death penalty for idolatry; rather, it simply warned against counseling idolatry.

Q128-In forbidding inferiors to rebel against the persons of superiors, the Divines cite Exodus 21:15: "And he that smiteth his father or his mother shall be surely put to death" (in the same context, cf. Deuteronomy 21:18-21) Not only does equity require a broader application to the relationship between all inferiors and superiors, but equity also dispenses with the death penalty for such offenses.

Q136-The Divines support the lawfulness of the death penalty as a form of "publick justice" by citing Numbers 35:31, which requires that all murderers be put to death. This is one of the rare cases where the judicial law of Moses is cited as completely relevant for today, and it is preceded by Genesis 9:6, which established the death penalty for murder for all humanity, not just Israel (though we shall see that the Divines did not think that the magistrate should enforce the death penalty for every Mosaic capital crime).

Q136-When defending the propriety of lawful war, the Divines cite the entirety of Deuteronomy 20. This may seem somewhat odd at first, because Deuteronomy 20 sets forth the principles of holy warfare, entailing the complete destruction of men, women, and children (not to mention flocks and herds). There is not a single verse in Deuteronomy 20 that would have been directly applicable to the English Civil War (which, after all, forms the context for the Westminster Assembly). But having seen the principle of equity at work throughout their work, the explanation is simple: the principle behind Deuteronomy 20 is that there is such a thing as lawful warfare. None of the specific statutes are applicable today, but the general equity remains in force. When allowing for "necessary defence" in the same answer, the Divines cite Exodus 22:2-3 which includes the provision that a thief shall be sold for his theft if he cannot pay full restitution. The Divines neither require double restitution (as the Mosaic Law required) nor argue for slavery. They believed that the equity of the law was satisfied through the permission of necessary defense in case the homeowner believed that he or his family was in danger.

Q142-To prove the sinfulness of "removing land-marks" the Divines cite Deuteronomy 19:14, which condemns removing landmarks. This is another case where the equity of the Law appears to be identical with the Law. Of course, the difference is that Deuteronomy 19:14 refers to the Promised Land in which each man's inheritance was inviolable and could not be permanently alienated. On the other hand, if a seventeenth-century man bought his neighbor's property, he could remove the landmarks that had previously formed the boundary-something forbidden by Deuteronomy due to the requirement to return the land in the year of Jubilee. Nonetheless, the principle of honoring property boundaries remains binding, even if the context is different.

Finally, Confession of Faith 22.7 states that "no man may vow to do anything forbidden in the Word of God," yet the Divines cited Numbers 30:5, 8, 12, 13, which states that a husband or father can annul vows made by his wife or daughter. The Divines do not say that the particular statute law of Israel is still in force. If they did, then they would find that verse two of Numbers 30 would contradict their statement: "When a man makes a vow to the LORD or takes an oath to obligate himself by a pledge, he must not break his word but must do everything he said." Numbers 30 provides no way out for men who make unlawful vows (indeed, the only way out would be to break the vow and bring a sin offering for having made an unlawful vow-see Leviticus 5:4-6). But the Divines ignore verse two and use the remainder of the passage which permitted men to overrule the vows of women to say that the Word of God may overrule the vows of all people. This is an argument from equity. Far from saying that this particular judicial law is still binding, the Divines are using it to demonstrate the principle that no unlawful vow can be binding. Our heavenly Father and Divine Bridegroom have the authority in the Word to annul any unlawful vow that we might make.

Therefore, the Confession's understanding of equity makes it clear that since the judicial law of Moses does not apply directly to modern nations, we must draw out general principles according to a conscience instructed in the whole Word of God. Much of the judicial law has a typical function, pointing us to the principles of justice of the Kingdom of Christ.

A couple of excerpts from Robert Baillie and Samuel Rutherfurd, Scottish commissioners to the Westminster Assembly confirm this understanding of equity. Baillie wrote in his A Dissuasive From the Errors of the Times: "They [the Brownists] lay it upon the Magistrate to punish by death, without any dispensation, every Adulterer, every Blasphemer, every Sabbath-breaker; and above all, every Idolater....For all this they will not permit any Magistrate to hang any thief at all."(11) Then later about the New England Independents like John Cotton, he wrote:

Look back upon what I have cited from the chiefe of the Brownists writings. I grant the New English polishers of Brownism do not express their Tenents in tearms so hugely gross; yet see how neare they come to them in substance, when they tell us that no Magistrate may make any laws about the Bodies, Lands, Goods, Liberties of the Subject, which are not according to the Laws and Rules of Scripture, Scripture being given to men for a perfect rule, as well in matters of Civill justice, as of devotion and holiness; and if so, then they must make it as unlawfull and contrary to the Scriptures perfection, for any man to make Lawes in matters of Righteousness and of the state, as in matters of Holiness and of the Church...Eightly, what men besides them have made so bold with Kings and Parliaments, as not only to break in pieces their old Lawes, and to divest them of all power to make new ones; but also under the Pretext of a divine right, to put upon their necks that unsupportable yoke of the Judiciall Law of the Jews, for peace and for warre, without any power to dispence either in addition or subtraction. I grant this principle of Barrow is limited by Mr. Cotton to such Judicialls as doe contain in them a morall equity; but this morall equity is extended by him to so many particulars, as Williams confesses the whole Judiciall law to be brought back againe thereby, no less than by the plaine, simple, and unlimited Tenet of the rigidest Brownists."(12)

Here Baillie makes it clear that the "morall equity" of the judicial law should not be extended to very many particulars, but should be seen in fairly general terms.

Samuel Rutherfurd wrote that "No man but sees the punishment of theft is of common morall equity, and obligeth all Nations, but the manner or degree of punishment is more positive: as to punish Theft by restoring foure Oxen for the stealing of one Oxe, doth not so oblige all Nations, but some other bodily punishment, as whipping, may be used against Theeves."(13) The fact that Rutherfurd is willing to substitute an entirely different theory of punishment from the biblical model of multiple restoration demonstrates that equity was considered a very general principle. Elsewhere he says:

But surely Erastus errs, who will have all such to be killed by the magistrate under the New Testament, because they were killed in the Old. Then are we to stone the men that gather sticks on the Lord's day; the child that is stubborn to his parents, the virgins, daughters of ministers that commit fornication are to be put to death. Why, but then the whole judicial law of God shall oblige us Christians as Carlstadt and others teach? I humbly conceive that the putting of some to death in the Old Testament, as it was a punishment to them, so was it a mysterious teaching of us, how God hated such and such sins, and mysteries of that kind are gone with other shadows. "But we read not" (says Erastus) "where Christ has changed those laws in the New Testament." It is true, Christ has not said in particular, I abolish the debarring of the leper seven days, and he that is thus and thus unclean shall be separated till the evening; nor has he said particularly of every ordinance and judicial law, it is abolished. But we conceive, the whole bulk of the judicial law, as judicial, and as it concerned the republic of the Jews only, is abolished, though the moral equity of all those are not abolished; also some punishments were merely symbolical to teach the detestation of such a vice, as the boring with an awl the ear of him that loved his master, and desired to serve him, and the making him his perpetual servant. I should think the punishing with death the man that gathered sticks on the Sabbath was such; and in all these the punishing of a sin against the moral law by the magistrate, is moral and perpetual; but the punishing of every sin against the moral law, tali modo, so and so, with death, with spitting on the face: I much doubt if these punishments in particular, and in their positive determination to the people of the Jews, be moral and perpetual. As he that would marry a captive woman of another religion, is to cause her first pare her nails, and wash herself, and give her a month or less time to lament the death of her parents, which was a judicial, not a ceremonial law; that this should be perpetual, because Christ in particular has not abolished it, to me seems most unjust; for as Paul says, "He that is circumcised becomes debtor to the whole law," surely to all the ceremonies of Moses' law; so I argue, a pari, from the like, he that will keep one judicial law, because judicial and given by Moses, becomes debtor to keep the whole judicial law, under pain of God's eternal wrath."(14)

Hence, a confessional understanding of equity starts from the conviction that the Mosaic judicial law has been abrogated, and we are merely seeking those most basic principles of justice that express the moral law of God.

3. A Case Study in Equity

Equity is not only an important principle for dealing with the Mosaic judicial law, it is also an important principle for church courts as we seek to live according to the Word of God and the church's standards. There will be times when our church courts are faced by situations that are not addressed by our Confession or Church Order.

In a recent case in the Presbytery of Michigan and Ontario, the presbytery was faced with a unique situation. A man and the mission work he pastored came to us from a small presbyterian denomination which had provisionally ordained him and allowed him to pastor this mission work with the requirement that he attend their denominational seminary by correspondence. Their book of order required that as soon as he withdrew from their seminary, the presbytery must immediately depose him without censure (and while his presbytery had postponed that vote until the week after our presbytery meeting, they refused to wait any longer after that).

The presbytery faced a dilemma. There was no provision in the Form of Government that precisely covered this situation. Since he had not finished seminary, they could not receive him as a minister without asking the advice of the General Assembly (FOG 23.3). But if they did that, then he would be deposed by his current presbytery and would no longer be able to serve his congregation. Hence following the closest statute (as the English Common Law would have required) would have resulted in a terrible injustice to a congregation which practices weekly communion because it would deprive them of their minister.

Two other sections of the Form of Government provided possible solutions: FOG 23.18 refers to a minister from another denomination coming to the OPC without a particular call, in which case the presbytery may require a full battery of examinations, enroll him as a member of the regional church, with the presbytery holding his credentials in suspense while he seeks a call. The problem was that FOG 23:18 requires the same educational credentials as FOG 23:3! And, of course, this man had a call, so this particular statute did not fully fit the situation. On the other hand, FOG 17.3 allows for non-OPC ministers to serve as regular supply in a congregation without a pastor.

The presbytery had two options: 1) take the common law route and find the closest applicable statute in the Form of Government, which would result in the deposition of the minister, requiring them to re-ordain him after he finished seminary; or 2) take the route of equity and attempt to discern what the principles of the Form of Government would require.

The presbytery chose the latter. Convinced that the specific statutes of the Form of Government did not apply to such a strange scenario, they enrolled the man as a member of the regional church, holding his ministerial credentials in suspense, and permitted him to serve as regular supply in the mission work (which had now entered the OPC), assigning a committee of presbytery to serve as an overseeing session for the work. By doing this the presbytery avoided a hasty examination of a man who was still relatively unknown to them, while preserving his ministerial credentials and his ability to serve his congregation while the presbytery took the time to examine him in a proper fashion.

4. How Shall We Then Judge?

Ordinarily, the law works just fine. We have an excellent Form of Government that has been proven by the test of time. Many of its principles and statutes have been practiced throughout many centuries of the church. Our Confession is a faithful summary of the system of doctrine taught in Holy Scripture. But there are times when the law simply does not address the situation. Even Solomon found that the statute law of Moses did not address every situation (1 Kings 3:16-28)! Equity will always be required in order to deal with those cases. Many American Christians are afraid of equity because they see behind it the specter of a judiciary run amok. They run to the "safety" of strict construction, thinking that if only we just follow the letter of the law everything will be fine. If Solomon had followed that reasoning, he never would have used such an unorthodox method to determine the rightful mother. No law (not even the law of Moses) was intended to cover every possible situation. The judges and kings of Israel were expected to use wisdom and equity in exercising just judgment. Deuteronomy 16:18-20 and 17:18-20 instructs them to train their consciences in the law of God so that they might render righteous judgment, and if Solomon is any example, then this included a healthy dose of equity.

Ruth is another example. Whereas Deuteronomy 23:3 commanded that no Moabite be allowed to enter the Assembly of the Lord, in the case of Ruth this law did not apply because she had the faith of Abraham. In the days of Ezra and Nehemiah, however, Moabite and other foreign women were cast out of Israel according to the law (Ezra 9-10; Nehemiah 13:23-29), because they were leading the people astray. There is no indication in Deuteronomy 23 that the original intent of the law allowed for exceptions, but the judges of Bethlehem plainly made one-and God confirmed it by placing Ruth's great grandson on the throne of Israel, contrary to a strict construction of Deuteronomy 23:3. We must beware, then, of reading any given law (whether in Scripture or in human constitutions) too narrowly. On the other hand, we must beware of claiming that a statute means something contrary to what it says. The equity argument does not allow presbyteries to make statutes say something they do not say. Rather, the equity argument allows presbyteries to exercise discretion when a statute does not apply to their situation. Their final decision must still remain in accord with the general equity of our Standards (and of course are subject to appeal to higher courts of the church). The only way to preserve the integrity of our doctrine and discipline is not by a strict construction of the law, but by continuing to train our consciences by the Word of God so that we can continue to do justly and love mercy in walking before our God.

But what do we do, then, when we face new exegetical and theological arguments in the church today? There are plainly instances where the Westminster Divines simply did not envision the issues that might be debated. The Orthodox Presbyterian Church has determined that the equity of the Confession permits uninspired hymns and has traditionally allowed for diversity of opinion with respect to several issues, such as eschatology and the length of the creation days (although the General Assembly has never ruled on either of these issues). The Confession's attitude toward equity does not resolve such issues, but it does provide the approach that we should take. Rather than asking about the "original intent" of the Westminster Divines on a debate they never encountered, the proper approach is to enquire as to the principles by which the Divines constructed their Confession. Was the section in question designed to exclude certain views? If so, are the contemporary views close parallels to those positions? If new exegetical arguments are being used, does that affect the way in which we should read the Confession?

We should also take note of the manner in which the Divines handled differences of opinion in other matters. For instance, while the vast majority of the Divines believed that the active obedience of Christ was a constituent element of justification, they willingly altered the first draft of the chapter on justification, in order to allow William Twisse (the prolocutor) and other members of the Assembly to retain their opinion that justification consisted solely of the imputation of Christ's passive obedience. The final language of the Confession permits both. On the other hand, the Divines refused to compromise with Amyrauldians and congregationalists, so there were limits to their concessions. Where should we draw the lines for how we interpret the Confession of Faith and Catechisms of the Orthodox Presbyterian Church? If we follow the lead of the Confession, then we must approach this matter from the standpoint of equity. We probably will not always agree upon what equity requires, but at least we will have a common method by which we can seek to reconcile our differences. Kyrie eleison.

1. Webster's New World Dictionary (New York: Warner Books, 1984).

2. See the historical survey in Theodore F. T. Plucknett's A Concise History of the Common Law (Boston: Little, Brown and Company, 1956) 191-198, 673-694.

3. Plucknett, 686.

4. Plucknett, 279.

5. John Calvin, The Commentaries of John Calvin on the First Epistle of Paul the Apostle to the Corinthians (Grand Rapids: Baker Book House, 1993/1546) 200.

6. John Calvin, Institutes of the Christian Religion (Philadelphia: Westminster, 1960/1559) IV.xx.15.

7. Ibid., IV.xx.16.

8. Francis Turretin, Institutes of Elenctic Theology (Phillipsburg, NJ: Presbyterian and Reformed, 1994) XI.xxvi.3.

9. Ibid., XI.xxvi.4.

10. Ibid., XI.xxvi.10.

11. London, 1646, 31-32. I am indebted to Chris Coldwell for these references.

12. Ibid., 127-28.

13. A Free Disputation Against Pretended Liberty of Conscience (London: R.I. for Andrew Crook, 1649) 298-99:

14. Divine Right of Church Government Vindicated (London: 1646), p. 493-494