26 Jul Applying Law
A few months ago a heart surgeon in Ontario was ticketed for speeding. Apparently he was doing 70 in a 40 zone. He was speeding because he had received an emergency call: someone needed heart surgery – immediately. The process of receiving the ticket cost the heart surgeon 10 precious minutes.
The patient was successfully operated on; however, this incident led to a country-wide debate on the application of the law. Sure, the heart surgeon was speeding, but, given the circumstances, shouldn’t he have been allowed to? Assuming that a heart surgeon is a responsible person, he probably felt the traffic circumstances were such that 70 was a safe speed, not just for himself but also for others.
This incident and the debate surrounding it illustrates how laws can be used and applied differently. Speeding is illegal. That’s the law. But the speed zone is in place to keep traffic safe, and we can assume there was little traffic. The principle was upheld. But the doctor had a real reason for speeding: he needed to get to the hospital fast. So there was a fair justification for speeding.
Illustrated in all this are three approaches in applying law. As laws, in the form of common agreements, are part and parcel of church life, they are present there too.
In what follows I would like to describe these three approaches and illustrate how they function in church life, making evaluative remarks along the way.
The three approaches to law can be referred to as positional, principle, and interactionist. These approaches are not so distinct as to be mutually exclusive; however, for the purposes of understanding them, it is helpful to view them as entirely distinct.
The positional approach takes the law as it is, as it has been posited. In this approach the text of the law is important. The law says doing 70 in a 40 zone is speeding, and thus anyone doing 70 in a 40 zone is to be ticketed. The Church Order says ministers are to preside at a classis (art. 44), so only ministers are allowed to do so. Someone taking the positional approach to an extreme might well argue that, if there are no ministers present, there can be no classis.
The principle approach takes the law as it came to be, or deals with the principles on which the law is based. In this approach the background to the law, sometimes referred to as “the spirit of the law,” is important. The law may say doing 70 in a 40 zone is speeding, but the speed-zone was put in place for the safety of traffic. If it is safe to go faster, that’s fine. The Church Order says ministers are to preside at a classis, but the point of the article is that, to avoid dominance by any one individual, every minister is to have a turn at presiding a classis. Hence it is also fine to have an elder preside a classis, even if ministers are present.
The interactionist approach approaches the law with a view to what it seeks to achieve. The interaction of the parties is the focus. In this approach the purpose or goal of the law is important. The law may say doing 70 in a 40 zone is speeding, but if someone has a good reason for speeding (like the heart surgeon), speeding is fine. The Church Order says a minister is to preside at a classis. However, if there’s a very capable elder present it is just as wise for him to preside at the classis.
When the three meet
The three approaches can, in a given situation, lead to different applications of law. This may result in the collision of the three approaches.
Imagine a classis consisting of four churches, three vacancies and one minister. A person advocating the positional approach will hold the minister should chair every classis. A person advocating the principle approach will object that this goes contrary to the spirit of the law. A person preferring an interactionist approach will prefer to look at the qualities of all those delegated to the classis and choose the best qualified person.
In the case of the speeding heart surgeon, the argument was primarily between the positional approach (70 is speeding) and the interactionist approach (there’s a good reason to speed). Both could use the principle approach to their advantage. The positional might argue that traffic conditions did not allow for speeding, while the interactionist approach might argue that traffic conditions did.
This illustrates that the three approaches are not mutually exclusive. Though people have a preference for a certain approach, generally all three approaches may be used by people to argue their case. An analysis of the arguments may in fact reveal that a person will first decide on his stance, and then look for the best approach to argue his stance.
Advantages and disadvantages
All three approaches have advantages and disadvantages. Often, the advantage of one approach is a disadvantage with the other two.
The positional approach is appreciated especially by those who are not well acquainted with the law and those with the duty to enforce it, such as police officers. The positional approach has as an advantage the fact that it is clear. We all know what the law says: 40 is 40 and 70 is speeding. Another advantage of this approach is that everybody is treated equally by the law. Finally, with the positional approach it is clear that the government legislates and determines the law.
The disadvantage here is a tendency towards legalism. There seem to be no allowances for disobedience to the law. It has been said: “Let justice take place, though the world perish.” There is something unmerciful, even unjust, about that. There is also something undemocratic about a government alone determining the law. Is such a government always aware of the impact of a law?
The principle approach is appreciated especially by those who are more acquainted with the law and with those who have to apply it, such as judges. The principle approach tends to be about being reasonable and equitable. Once laws are enacted, they are to be constantly updated to stay in step with changing circumstances.
The disadvantage here is a lack of clarity. While laws are enacted, underlying principles usually are not. Who determines what is the spirit of the law? This approach also falters when underlying principles are at odds with each other. The protests during the 2010 Games illustrate this: here freedom of speech and the protection of property often collided.
The interactionist approach is appreciated especially by those more acquainted with the law and involved in resolving a conflict, such as counsellors and mediators. Law is an instrument – often just one of the instruments – to reach a certain goal. The advantage here is that the circumstances play an important role in deciding on a course of action. Each case is judged on its own merits.
The disadvantage here is that there is total lack of clarity. This approach is very subjective. An objective law or principle does not determine a course of action, but the sentiments of a person or group of persons.
The three approaches thus focus on the source of law (principle), the status of law (positional), and the purpose of law (interactionist). One may put them in a chronological order. The principle approach looks to the past and asks “why was the law created?” The positional approach looks to the present and asks “what does the law say?” The interactionist approach looks to the future and asks “what does the law seek to achieve?”
The three approaches are not mutually exclusive. A person may reflect on all three approaches when considering a situation. Or a group of persons, comprised of people with differing tendencies, may debate the issue from various perspectives.
By way of illustration, imagine a debate in secular society on whether someone is allowed to use soft drugs. The positional approach will note: soft drugs are illegal. The principle approach will note: one of a person’s basic human rights is that they should be in control of their own body. The interactionist approach will note: using soft drugs does not harm other people but the user may become a burden to the health system. The positional will thus say “no”, the principle will thus say “yes”, and the interactionist will say “under certain circumstances.”
The approaches in church life
In church life, too, these three approaches are also present.
Some (many?) will favour the positional approach. God is clear, so the church should be clear. Posited law, articulated in church order articles and ecclesiastical assembly decisions, takes on the character of a confessional statement. And, especially those not all too familiar with the workings of the law, will advocate the simple application of the church order: not doing so is sin against the fifth commandment.
However, the church order is not a confessional statement. It prescribes and outlines a way for doing things in given situations. Only, the church order does not cover all situations. Given this, many others will favour a principle approach. We are to work with the principles that underlie the agreements in our churches. The word “law” even becomes inadequate, for the church order is a set of prescriptive guidelines. As long as one acts within the spirit of the church order, keeps to the reformed traditions, an accusation of sin would be out of place.
Yet others will favour an interactionist approach. We are to seek situations in which love and loyalty best come to expression. If the “law” (church order) helps us do that, make use of it. If it does not, we are free to ignore this man-made document and do all that promotes justice and mercy.
Because the three approaches interact with each other, the texts of the laws may actually reflect these approaches. Yes, it becomes this complicated. The principle and interactionist approaches may actually become posited law. At times this is frustrating to those preferring the positional approach.
An illustration may make this clear. The original Church Order of Dort prescribed that, if a church is not vacant, a minister will preside at the consistory. This prescription now reads that the minister shall preside “as a rule.” This could be evidence of a principle approach: originally it was decided that the minister should preside as he was the best qualified. It could also evidence an interactionist approach: in today’s world ministers are not necessarily the best chairmen.
Admission of guests to the Lord’s Supper may also serve as a good illustration here.
In Canadian Reformed Churches, the positional approach advocates only admitting those who have an attestation. The principle approach advocates also admitting those who have undergone a proper interview with respect to doctrine and for whom there is an independent testimony about their walk of life. The interactionist approach advocates admitting all who request admission, so as to express most fully the unity and catholicity of the church.
When the approaches meet
When the approaches meet in a debate, it often results in a collision. Especially when the issues are felt to be more pressing and sensitive, those having to decide will gravitate to one of the three approaches. With a view to the upcoming synod, I think of such issues as our relationships with the URCNA, the GKN(v), and of women voting.
I have been a minister now for almost eleven years, and have attended in person, besides many classes and regional synods, eight general synods or assemblies, mostly in North America. My experience indicates that the following tends to happen.
The interactionist approach tends to find the other two too legalistic. The principle approach will find the positional approach too legalistic and the interactionist position too subjective and emotional. The positional approach will find the other two to be too unclear and subjective.
All this raises the question: where does Scripture figure in all of this? Is one approach to be favoured above another? Should any be considered unbiblical?
I would argue the Scripture does not favour one approach above the other.
Our Lord urges his hearers to do as the Pharisees taught (Matthew 23:2-3a). There is a place for a positional approach. Keep the law means keep the whole law (Matthew 5:17-20).
But in applying law, our Lord takes us back to creation ordinances (Matthew 19:8-9). Thus there is a place for a principle approach. We all know that “You shall not murder” also means “You shall not hate” (1 John 3:15).
Our Lord also reprimanded the Pharisees for neglecting the depth of the law, the more important matters of justice, mercy, and faithfulness (Matthew 23:23). There is a place for the interactionist approach. It is lawful to do good on the Sabbath (Mark 3:4).
If our Lord used all three approaches, one may conclude that all three approaches should be given due consideration in a situation. This would seem to be the Biblical directive on approaches to the law.
The three approaches also tend to collide where people are being self-centred, (something that by their sinful nature they are). In a church setting, however, people should be other-centred, especially Other-centred. The approaches will not be used to defend a personal cause, but God’s cause. Thus, even if there is disagreement on which approach to favour, recognising that others seek a similar goal will allow for an appreciation of these other approaches. This is what Scripture calls “having the attitude of Christ” (Philippians 2:1-11).
How might this work in practice?
When drafting laws (church order articles, regulations) or decisions, it may be good to articulate these three approaches. The interactionist approach will be first: where are we going? The principle approach is next: what are the parameters or the limits? The positional is last: how shall it be articulated to be in keeping with the principles and to achieve the goal, without falling short or going too far?
When applying laws, it may also be helpful to go through this exercise. It may even indicate that the posited law requires fine tuning. There is always room for improvement (James 3:2). The Proposed Joint Church Order between the Canadian Reformed and the United Reformed bears this out. Regarding the person presiding at a classis, it reads: “The assembly shall choose one of its members to preside. The same person shall not function as chairman twice in succession.” The proposed posited law has taken the principle approach into account. To take the interactionist approach into account, it could read (as it does in the article on church visitors) “one of its more able members.”
May those called to draft and apply laws in our churches receive wisdom and insight from the Spirit to do so. For the church is the Lord’s, and the principle is that we are governed by Christ. In doing so, let us follow his example. May the church thus be all the more the place where unity, catholicity, sanctity, and Christianity come to expression.
 I have not yet found a standard English language explanation for these three. They are found in a standard introduction to law used at Dutch Universities: W. Witteveen, De geordende wereld van het recht: een inleiding (Amsterdam: Amsterdam University Press, 2001), 55-70.