The Doctrine Of The Lesser Magistrate 2022
By: Shafer Parker, FBB Board Member
The blog that appears below was first published by Faith Beyond Belief about a year ago. Since then, it has continued to attract interest and has been our most read blog for the past 12 months. For that reason, we have decided to republish this slightly edited version. We thank Shafer for his time and willingness to offer his own opinions which may or may not reflect the beliefs of Faith Beyond Belief.
-Heather Skinner, Executive Director
The past 12 months have not been kind to lovers of freedom. Generally, the trend in Canada and the U. S. has been toward increased governmental coercion in attempts to force universal acceptance of COVID vaccines. Jobs have been threatened, and public freedoms have been progressively removed. In Alberta, for instance, a vaccine passport is now required to eat out or attend most public functions.
But the tide of increased restrictions may have begun to ebb. In mid-December Colorado Democrat Governor Jared Polis declared that in his state, at least, the COVID-19 emergency is “over.” Not only would he not impose any further mask mandates, but he was also going to leave it up to individuals to decide if they would be vaccinated. If people choose not to be vaccinated, and then get sick, “It’s their own darn fault,” he said.
The article below begins with examples of local sheriffs defying unconstitutional government mandates, and truly these men are excellent examples of “lesser magistrates” holding themselves accountable to a higher principle of service, and thereby serving the people. But we forget that governors and premiers are also lesser magistrates. And thank goodness they are. When Prime Minister Justin Trudeau mused openly in January 2022 about giving provinces the power to mandate COVID shots, Alberta Premier Jason Kenney immediately tweeted that “Alberta’s Legislature removed the power of mandatory vaccination from the Public Health Act last year and will not revisit that decision, period.” Saskatchewan Premier Scott Moe followed up with a similar announcement. If these two premiers find widespread support for taking a pro-freedom stand, who knows but what they might be tempted to revisit their position on vaccine passports?
I believe that over these past two years the doctrine of the lesser magistrates has become increasingly important to lovers of liberty. Read the article below for a better understanding of what the doctrine is, and how we can use it to benefit Canada and the world.
The Doctrine of the Lesser Magistrates
by Shafer Parker
On January 25, 2021 California Governor Gavin Newsom lifted his horrendously unpopular regional stay-at-home orders, allowed restaurants to re-open outdoor dining, and freed state residents to access personal services. He also removed a statewide curfew that had limited non-essential activities between 10 p.m. and 5 a.m. At the time Governor Newsom was facing a potentially successful recall movement and that may have had something to do with his decision to open up his state. But it is just as possible that the principled stand taken by three county sheriffs also had an impact.
At a mid-January Re-open California Now conference Eldorado County Sheriff John D’Agostini and Sacramento County Sheriff Scott Jones told their audience that they would not enforce edicts and health restrictions that they do not believe are constitutional in their state. The two were openly backed by Riverside County Sheriff Chad Bianco who could not attend. “We follow the law, Sheriff D’Agostini said, “and everything that I could find in the law was very clear: These types 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 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?”
Some might argue that these California sheriffs were 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) were 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, like the authority granted to a governor or president, their authority is also a gift from God (Rom. 13:1-4), and that they, too, will someday give an account to God for how they discharged their responsibilities. Here’s Trewhella defining the doctrine:
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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 occasion in 39 A.D. when Publius Petronius, the Roman governor of Palestine, refused to install an image of Roman Emperor Caligula in the Jewish temple in Jerusalem. Caligula was enraged and sent a letter to Petronius instructing him to commit suicide. His life was saved by what can only appear to be divine intervention. Shortly after commanding Petronius’ suicide Caligula was assassinated, and the ship bearing the news of his demise arrived before the ship bearing the suicide order.
Petronius has long been commended for his actions, but his courage was easily superseded by that of Daniel’s three friends, Shadrach, Meshach, and Abednego, who risked their lives when Babylonian emperor Nebuchadnezzar ordered them to worship the golden statue he had made. Daniel 3:12 strongly implies that these men were not resisting the king’s orders for themselves alone, but also to protect the consciences of the people in the Babylonian province they ruled. Apart from Scripture, the most explicit statement of this doctrine actually comes from the Roman Emperor Trajan (ruled 98 – 117 A.D.), 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.”
Other examples of brave men standing for truth and justice can be found in history and Scripture, but the Biblical doctrine of the lesser magistrates was first formulated by the pastors of Magdeburg, Germany in April 1550. Holy Roman Emperor Charles V had brought an army to the north in 1548, determined to bring the German Protestant cities back under the banner of Catholicism. Only Magdeburg resisted, closing their city gates, and trusting God for deliverance.
During the siege that followed, the pastors of Magdeburg prepared a document known today as “The Magdeburg Confession” which they acknowledged would not have been written apart from the exigent circumstances. The first part of the document declares their loyalty to orthodox Lutheran theology, but the second part empowered reformed believers to stand for God and his Word against all comers for at least the next 200 years.
The Magdeburg pastors insisted that if allowed to worship according to their Biblically informed consciences, they would be the emperor’s best citizens. They had taken their stand, they added, “only because of their love for Christ, and His Law, and Word” (Trewhella, p. 34). But, in the words of the Confession, they had not forgotten that:
The Magistrate is an ordinance of God for the honor to good works and a terror to evil works (Romans 13). Therefore when he begins to be a terror to good works and honor to evil, there is no longer in him, because he does thus, the ordinance of God, but the ordinance of the devil. And he who resists such works, does not resist the ordinance of God, but the ordinance of the devil.
From this statement the pastors further concluded that unlimited obedience to the State was “an invention of the devil.” In their view, since all authority is delegated from God, all who are determined to obey God “have both a right not to obey, and a duty to actively resist” in the face of evil laws (Trewhella, p. 35). Moreover, in their own words they supported with their very lives the principle that “divine laws necessarily trump human ones.” For the pastors, then, immoral laws and edicts from emperors and kings could not become an excuse for the lesser magistrates to do evil or allow evil. Instead, because these magistrates also held their offices as gifts from God, they had a duty “to protect the citizens within their jurisdictions.”
Both John Calvin and John Knox agreed with the Magdeburg pastors because they found abundant support for the lesser magistrate doctrine in the Scriptures, 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 reports 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 someone, 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 Israel’s leaders for their willingness to callously shed the blood of their compatriots, simply for their own advantage. He speaks against the princes for their contempt toward their own parents, 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 says, “And I sought for a man among them who should build up the wall and stand in the breach before me for the land (interposition), that I should not destroy it, but I found none.” Thus, Jerusalem was doomed to destruction, 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. Based upon arguments first put forward by the Magdeburg pastors he states:
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.
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 also 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 wellbeing 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, the lesser magistrate is responsible for understanding what is going on, as well as possessing the right and duty to act.
Of even greater importance is the need for magistrates at all levels to understand that since Moses came down from Mt. Sinai human beings have been privileged to possess God’s own declaration of the highest laws, as well as their application. I’m talking about the Ten Commandments, along with the case law applications of the Ten Commandments found throughout the Bible. The Ten Commandments are the primary exposition of objective law in the Christian worldview. 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 a man (though Hammurabi pretended he received it from a god), 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 seen 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, that supersedes all other laws. Ultimately, these are the laws that are to guide all magistrates, lesser and greater. If God is truly God, and if Christians really believe that all authority is appointed by God, 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 could happen if you brought them a few timely thoughts about their primary responsibility to God, or if you offered them a copy of, say, The Doctrine of the Lesser Magistrates with a few key passages highlighted to attract his, or her interest? It won’t intimidate them. It’s only 115 pages, including a very useful bibliography. And if you give your time and energy to, say, sitting on a candidate’s board and knocking on doors to get him re-elected, who knows where 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. You may even save their souls.