The Doctrine of the Lesser Magistrates
by Shafer Parker
On January 25, 2021 California Governor Gavin Newsom lifted regional stay-at-home orders, allowed restaurants to re-open outdoor dining and California residents to access personal services. He also removed a statewide curfew that limited non-essential activities between 10 p.m. and 5 a.m. Governor Newsom is facing an active recall movement and that may have had something to do with his decision to free up his state. But it is just as possible that the principled stand taken by three county sheriffs has also had an impact.
At a Re-open California Now statewide conference Eldorado County Sheriff John D’Agostini, Sacramento County Sheriff Scott Jones, backed by Riverside County Sheriff Chad Bianco who unfortunately could not attend, told their audience that they would not enforce edicts and health restrictions that they do not believe are constitutional in their state. “We follow the law”, Sheriff D’Agostini said, “and everything that I could find in the law was very clear: The Sheriff may enforce such orders. These type of orders, the Sheriff ‘may’ enforce. Not ‘shall’. It’s a huge difference between those two words.”
Sheriff Jones added, “If we are to be used as an instrument, an armed instrument to enforce these restrictions that are coming, not from the Legislature who enacts laws that we do enforce, but from health officials, sometimes who are not even medical doctors, or certainly practicing medical doctors. These have questionable constitutionality to me. So, do I want to put my officers in that position?”
“...these sheriffs (lesser magistrates) are performing a service for their fellow Californians by offering a “proper resistance to tyranny” and providing an example of a principled “repudiation of unlimited obedience to civil government.”
Some might argue that these California sheriffs are fomenting rebellion against the state and ignoring the important doctrine of the rule of law. But Matthew J. Trewhella, author of The Doctrine of the Lesser Magistrates, would say just the opposite. From his point of view these sheriffs (lesser magistrates) are performing a service for their fellow Californians by offering a “proper resistance to tyranny” and providing an example of a principled “repudiation of unlimited obedience to civil government.” Trewhella argues that since history shows that abuse of authority is “not an uncommon occurrence,” it is necessary for citizens to “understand both the purpose and limitations of the State.”
To combat this universal tendency toward tyranny, Trewhella suggests there are a handful of tools typically available to nations that enjoy the freedoms inherent in the English parliamentary tradition. The two best known tools are the ballot box, through which citizens can reject politicians who show signs of totalitarianism, and the jury box, through which smaller groups of citizens have the right through jury nullification to acquit because they believe that even though the defendant may be guilty, the law itself is unjust. But from Trewhella’s point of view, a better means of preserving liberty in the land is through a renewed emphasis on encouraging police and other local officials (lesser magistrates) to remember that their own authority is a gift from God (Rom. 13:1-4), and that along with Prime Ministers and Kings, they, too, will someday give an account for how they discharged their responsibilities. Here’s how Trewhella defines the doctrine:
The lesser magistrate doctrine declares that when the superior or higher civil authority makes unjust/immoral laws or decrees, the lesser or lower ranking civil authority has both a right and duty to refuse obedience to that superior authority. If necessary, the lesser authorities even have the right and obligation to actively resist the superior authority.
The tradition of resistance to unjust laws by the lesser magistrates includes the time in 39 AD when Publius Petronius, the Roman governor of Palestine refused to install an image of Caligula, emperor of Rome, in the Jewish temple in Jerusalem. Caligula was enraged and sent a letter to Petronius instructing him to commit suicide. Shortly after sending the letter Caligula was assassinated and the ship bearing the news of his demise arrived in the Holy Land before the ship bearing the suicide order. Petronius is to be commended for his courage, but he, in fact, was following in the footsteps of the Biblical prophet Daniel, who risked his life when he deliberately disobeyed the Persian emperor Darius’ edict to pray only to him for 30 days. But in ancient times the most explicit statement of this doctrine actually came from the Roman Emperor Trajan (d. 117 AD), who handed his sword to a lesser official with the following instructions, “Use this sword against my enemies, if I give righteous commands; but if I give unrighteous commands, use it against me.”
“...following in the footsteps of the Biblical prophet Daniel, who risked his life when he deliberately disobeyed the Persian emperor Darius’ edict...”
Supported by such Reformation luminaries as John Calvin and John Knox, the doctrine of the lesser magistrates was first formulated by the pastors of Magdeburg, Germany, who did so because they found abundant support for it in Scripture, including Exodus 1:15-21; Daniel 3; Daniel 6; Matthew 2:1-11; and Acts 5:29. In fact, in a letter to the nobles of Scotland in 1558 John Knox cited over seventy passages of Scripture to support the doctrine. He insisted that the nobles, as well as the king, had a duty to protect the innocent and oppose those who made unjust laws or decrees. Trewhella points out that Knox took the position that “when the State commands that which God forbids or forbids that which God commands, men have a duty to obey God rather than man” (Italics in the original).
Trewhella points out that the doctrine of the lesser magistrates is rooted in the historical, biblical doctrine of interposition, in which God calls or causes someone to step into the gap—willingly placing himself or herself between the oppressor and his intended victim. Perhaps the clearest exposition of this doctrine is found in Ezekiel 22, where God brings a series of accusations against every strata of Israel’s leadership for their willingness to callously and casually shed the blood of their compatriots simply for their own advantage. He speaks against the princes for their contempt toward their own parents and He excoriates others for their lewdness and adulteries, as well as their readiness to shed blood for profit. He even rejects His own prophets for smearing whitewash on those committing these rampant evils.
Then, in Eze. 22:30 God complains, “And I sought for a man among them who should build up the wall and stand in the breach before me for the land, that I should not destroy it (interposition), but I found none.” Thus, Jerusalem was doomed to destruction, but not just because the king failed to uphold his responsibility to maintain justice and punish evildoers, but because no one was willing to take a stand for justice and righteousness.
To those who are tempted to think that Romans 13 is the final word on government and God, Trewhella offers much-needed balance.
All authority is delegated authority, derived from God. All authority is thus limited authority. God has established four realms of government to which He delegates authority: (1) self-government; (2) family government; (3) church government; (4) civil government. … If one invades the authority of the other, chaos or tyranny ensues.
“And I sought for a man among them who should build up the wall and stand in the breach before me for the land, that I should not destroy it, but I found none.”
This, of course, is in perfect alignment with Romans 13, which states in verse 1 that “there is no authority except from God, and the authorities that exist are appointed by God.” Of course they are, but we must not forget that they are appointed to operate in specific spheres. Just as the individual (self-government) has no inherent right to govern another individual, neither may the state govern matters that God has given to the church, or the family. If the state attempts to exert its authority over realms that God has delegated to others, it must be resisted. Moreover, those who publicly identify where the state has overstepped, along with those who resist the state’s encroachment, are servants of God who ultimately contribute to the well-being of the whole society.
Trewhella gives a short synopsis of the duties of the lesser magistrates. And when you read these instructions, remember that each magistrate, no matter how limited his authority, holds his position as a divine gift in exactly the same way as the highest office holder in the land.
The primary duty of the lesser magistrates is threefold. First, they are to oppose and resist any laws or edicts from the higher authority that contravene the law or Word of God. Second, they are to protect the person, liberty, and property of those who reside within their jurisdiction from any unjust or immoral laws or actions by the higher authority. Third, they are not to implement any laws or decrees made by the higher authority that violate their nation’s constitution. If necessary, they are to resist them.
But how is the lesser magistrate to know when it is time to risk life and limb in resistance to the higher authority? There is, of course, no substitute for knowing the laws of the land, and most especially the constitutional protections that citizens are supposed to enjoy. If governments are overrunning constitutional protections, then a lesser magistrate certainly has the right and duty to act.
But of even greater importance is the need for magistrates at all levels to understand that from Moses until now human beings have been privileged to possess God’s own description of the highest laws, as well as their application. I’m talking about the Ten Commandments, along with the case law found throughout the Bible that explains how each of these commandments is to be applied. If God is truly God, and if Christians really believe that all authority is appointed by God, then we also have the duty to make certain our magistrates know what God expects of them.
The Ten Commandments are the primary exposition of objective law in the Christian worldview. When Moses came down from Mt. Sinai, for the first time the world had a law that stood apart from the whims of a king, or any other authority. That was a radical departure from the Code of Hammurabi, in which every law was an expression of the king’s preference.
The problem with Hammurabi’s code is obvious. Since it came from man, it could easily be changed, if not by Hammurabi then by the next man. Interestingly enough, when the great stele on which Hammurabi wrote his laws was discovered in 1901, it was soon learned that a succeeding king had scraped off more than 30 laws. Apparently, he didn’t like those so much and suddenly the law was changed.
When God gives us His law, and then appears on earth to personally explain it to us (see Matthew 5-7 and 19 as examples), we suddenly see that there is a law that never changes, and that supersedes all other laws. Ultimately, these are the laws that are to guide all magistrates, lesser and greater, and as Christians it is our duty to keep these laws before the minds of lawmakers at all times. But how? Most of us will never be allowed to get close enough to talk with, let alone teach a prime minster or top-level bureaucrat (who in writing regulations based on legislation becomes a legislator himself).
This underlines the importance of the lesser magistrates. They live and work nearby, and because they need your vote to hold office, they are likely amenable to the odd visit. They may even offer you a coffee. Who knows what might happen if you had a few timely thoughts to offer them about their primary responsibility to God, or if you offered them a copy of, say, The Doctrine of the Lesser Magistrates (it’s only 95 pages) with a few key passages highlighted to attract his or her interest. You might simply ask what he or she would do when faced with a regulation or law that appeared to overstep and see where the conversation leads. And if you gave your time and energy to, say, sitting on his board and knocking on doors, who knows where his gratitude might lead? Well, God knows.
Remember this, if the lesser magistrates truly have a duty to obey God first, then it is a primary duty of some Christians to do all they can to explain that duty to them. Who knows? You may even save their souls.