Sometimes doctrinal review is like spell check. Spell check is up to its own task, but not up to other tasks. Its competence does not extend to, for example, diction.

“Ode to the Spell Checker”
by Jerrold H. Zar

Eye halve a spelling checker
It came with my pea sea.
It plainly marks four my revue miss steaks eye kin knot sea.
Eye strike a quay and type a word and weight for it to say
Weather eye yam wrong oar write.
It shows me strait a weigh as soon as a mist ache is maid.
It nose bee fore two long and eye can put the error rite.
Its rare lea ever wrong.
Eye have run this poem threw it,
I am shore your pleased to no.
Its letter perfect awl the way.
My checker told me sew.

In the same way. Doctrinal Review is up to its own task, but not up to other tasks. Just like we need not only right spelling but right diction, we also need more than just what Doctrinal Review is accomplishing.

The new Lutheran Church Missouri Synod annotated Large Catechism includes an essay on the Fifth Commandment titled “Lawful Lethal Force.” It addresses self-defense, use of arms, and related matters. Among other things it asserts:

Lethal force, Luther consistently taught, is rightly used only by the one placed into the Amt of authority in the state. It is never exercised for the sake of self, but always and only for the sake of the neighbor.

A footnote in the same paragraph says:

The Second Amendment of the U.S. Constitution, of course, does articulate such a right, and while not offering a rationale, the implicit foundation is the exercise of reason and the ideals of the Enlightenment.

Working for 23 years in private legal practice that included criminal defense, 19 years in criminal prosecution, and four and a half years as civil attorney for my county, I have had many occasions to observe the text of the Second Amendment in a wide variety of contexts. Within the U. S. Bill of Rights, it stands out like a lone tree on the prairie from the other nine amendments by articulating its rationale. It says, “A well-regulated Militia, being necessary to the security of a free State . . ..” That is text facially present in the amendment. That is a textually articulated rationale.

One can argue about the quality of the rationale. One can argue about what that rationale means. What one cannot do without a complete failure of exegesis is to deny that the rationale, such as it is, is there. It stands in the text. It is articulated in the amendment. The patent exegetical error of the catechism essay drew my attention and gave me pause to think further about what Synod is teaching here.

Having failed in exegesis of text present in the amendment, the essay goes on to fail in exegesis by exogenous injection into the amendment of alleged text not present in it. It imports on sheer assertion an “implicit foundation.” Implied from where? The supposed implicit foundation is “the exercise of reason and the ideals of the Enlightenment.”

What – the right of self-defense did not arise without the exercise of reason? It did not exist before the Enlightenment? That is historically inaccurate and jurisprudentially incompetent.

When I read that, I recalled off the top of my head what we were taught in my law school by Dean Robert Sullivan in his two, four-semester hour “Introduction to Law I & II” courses. The right of self-defense historically and jurisprudentially has existed, insofar as written history shows, in nearly every time, place, culture, and society. Today, self-defense is a recognized tenet of international law, which of course is not dependent solely on the European Enlightenment.

Let us see how the essayist’s political postulate stands up against the briefest of reviews of the historical and jurisprudential facts.

Ancient Greece. Demosthenes cited the Athenian statute: “If any man while violently and illegally seizing another shall be slain straightway in self-defense, there shall be no penalty for his death.”  Straightway here means while the danger requiring self-defense still is imminent, not some time later after it has subsided.

Hebrew Commonwealth.  “If a thief is caught breaking in at night and is struck a fatal blow, the defender is not guilty of bloodshed; but if it happens after sunrise, the defender is guilty of bloodshed.” (Exodus 22:2) This acknowledges mens rea, whether the harmful act was coupled with a bad mind or a bad intent. In the dark of night, it is not so easy for a householder to know what an intruder is doing in the house, and that affects the state of mind of the defender.

Ancient Rome. The passage from monarchy to republic happened when the Lex Duodecim Tabularum, or Duodecim Tabulae, the Twelve Tables of the Roman law were taken from their occult quarters in religious temples and posted in bronze in the Forum. That made the law a public rather than hidden matter, res publico, hence republic. This, in 449 B.C., was somewhat before the Enlightenment in the 17th and 18th centuries A.D. The self-defense rules are in Table VIII, for example:

12. If a theft be committed at night, and the thief be killed, let his death be deemed lawful.

13. If in the daytime (only if he defend himself with weapons).

See how similar they are to Moses. Up to a certain point in time, the right was sometimes denied to conquered and subjugated peoples. But in 212 A.D., the right was extended to all free subjects of the Empire. From the Twelve Tables, self-defense passed into Corpus Juris (Justinian’s Code, circa 535 AD) and throughout the Roman Empire. Along with that was the right of Roman citizens to bear arms.

Byzantine Empire. Upon the division of Rome into West and East, new laws created by the Byzantines continued to guarantee the right of self-defense.

Rhodian Law. The rulers of the island of Rhodes promulgated a truly international legal code. The Rhodian Law was a maritime code put into final form between A.D. 600 and 800.  The Rhodian Law was the widely accepted international law for maritime trade of the eastern Mediterranean. It codified self-defense.

Islamic Law. During roughly the same period when Rhodian Law was developed, Islamic law also was being formulated. While there are several distinct schools of Islamic law, they all agree that self-defense is lawful.

Canon Law. The foundational text of Canon law, the Decretum, was written around 1140 by Gratian, a professor of theology at the University of Bologna.  The Decretum begins, “The human race is ruled by two things, namely natural law and usages.” Gratian said,

Natural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment. For example: . . . the repelling of violence by force. This, and everything similar, is never regarded as unjust but is held to be natural and equitable.

Joannes Teutonicus, in an influential commentary on the Decretum circa 1211-15, distinguished vengeance (injuring someone when there was no longer any danger) from legitimate defense of person and property against an immediate attack. Pope Gregory IX in his Decretals (1234) consolidating the Decretum said flatly, “it is always lawful to meet force with force.” Thomas Aquinas affirmed and even expanded self-defense in Summa Theologica. Under canon law, the defense of the state arose from the natural right of self-defense, not the other way around. We see that in the rationale in the Second Amendment.

Spanish Law. The Visigothic kingdom succeeded the Roman Empire in Spain. It incorporated self-defense into its legal code. Following the Moorish conquest of Spain, Shari’a law was imposed on much of Spain, which includes the right of self-defense.  In the thirteenth century, King Alfonso X of Castile, the Learned, compiled Las Siete Partidas (The Seven Divisions), an extensive legal code which protected the right of defensive homicide.

Anglo Law. Ine, King of Wessex (688 to 726), is most remembered for his legal code. His law says, “whoever slays a thief must swear an oath that the thief was slain while offending.” Other similar laws prevailed under King Withraed (690-725) and King Alfred (871-901).

In his eminent De legibus et consuetudinibus Angliæ (On the Laws and Customs of England), Henry de Bracton (1210-1268) reported the right of Englishmen to self-defense. (He also is famous for saying, “If the King of Kings and Lord of Lords came born under the Law, how much more the King of England,” and “In England the king is below God and below the law.”) His ideas of mens rea (bad mind, bad intent) that must join a bad action for there to be criminal liability is a fundament of American law to this day.

Notice that none of this depends on the Enlightenment or its notions of reason. On the contrary, Bracton, who was both a cleric and a jurist, developed his jurisprudence from two strains of natural law: the indigenous moral sentiments common to many peoples and especially his own people; and divine revelation in Scripture.

These two would become crystallized in Blackstone’s Commentaries on the Common Law of England. The Philadelphia edition of Blackstone sold 12 times as many copies in British America as the London edition did in Britain. The ancient Anglo ideas from the Seventh Century, originating in moral sentiment and revelation, not reason or Enlightenment, descend intact and with widespread reception into the colonies of British America. While it is true that Blackstone lived in the Age of Enlightenment, if one takes the trouble to read him, his natural law jurisprudence is hardly an Enlightenment idea any more than is Bracton’s. He is not innovating. He is reporting what from ancient time had developed as the customs of England. On the contrary, Enlightenment philosophy’s effect has been a shift from natural law to positive law philosophy. It is under positive law that legislatures, courts, monarchs, and despots are said to have the power to disarm the people.

Throughout much of that Anglo history, not only was there a right to self-defense and a right to bear arms for that purpose, but it was a crime to disarm someone.

Note, I have not said here whether there should be a right of self-defense or a right to bear arms. That is not the topic. The topic is the claim the synodical essayist made that the right of self-defense or the right to bear arms did not arise aside from reason and the ideals of the Enlightenment. On that topic, I have surveyed the history and law of that right simply to assess the essayist’s claim. I have surveyed the right of self-defense in Ancient Greece, the Hebrew Commonwealth, Ancient Rome, the Byzantine Empire, Rhodian Law, Canon Law, Spanish Law, and Anglo law not to say whether any of those laws were right or good. It is only to show that they existed. They stand in history. They stand in law. Denying their existence before the Enlightenment is a special kind of wrongheadedness. Thinking it will slip past us like we know nothing about history or law is a special kind of something: you give that its right name.

This kind of stuff is among the reasons lay people don’t read theologians as much as they should. We should read theologians. I am not speaking against reading them. But lay people don’t read them as much as they should partly because of the loss of confidence that follows from reading this sort of inaccurate and incompetent affront to a right that so many societies and God in Scripture have affirmed. In this kind of stuff, theologians are out of their lane and make a bad name for Christianity.

This sort of stuff passes Doctrinal Review because the historical and jurisprudential claims of the essay are not addressed in the Book of Concord. Spell check, so to speak, is not up to the task of assessing this sort of thing.

What should not have passed Doctrinal Review, however, is the implicit claim that texts of Scripture such as Exodus 22:2 have no continuing value in understanding the Fifth Commandment.