Presbyterian Presuppositions of Judicial Process

Modern Presbyterians often find it difficult to reach the proper balance concerning judicial procedures. On the one hand, there are those of a legalistic bent who look for a judicial action to solve every problem. They flood the church courts with accusations, condemnations, complaints and appeals whenever they do not get their own way. So much of the court’s precious, limited time is therefore spent on dealing with all these formal complaints that little, real work of the ministry seems to get done. Furthermore, decisions often tend to hang on whether technical details of the BCO have been followed; giving many the impression that justice is perverted to satisfy the legalistic provisions of the constitution.

On the other hand, and perhaps as a reaction to the problems above, other Presbyterians intuitively distrust judicial process, and will do anything to get around actually trying a case in the church courts. But the problem here, is that in a legitimate desire for justice, often, by side-stepping the procedures of the BCO, such people can inadvertently pervert justice by substituting their own standards for those of the church. Sins can go uncorrected, heresies can flourish and men’s reputations can be ruined, because the courts are not used to render wise judgments. Gossip, tale-bearing and innuendo, often replace the rules of evidence.

There is a third way; understanding the presuppositions that govern both our Confessional Standards, and the Book of Church Order, and then acting consistently with those presuppositions. Van Til was right, there is no neutrality; men will become consistent with their basic presuppositions. And sadly, when Presbyterians do not analyze their own assumptions concerning the way the Church is to handle sin, often, un-reformed and sometimes even unbiblical presuppositions can remain unchallenged for years. Actions that logically derive from these presuppositions can then influence the direction of the judicial process; and in some cases, distort or even pervert it.

Perhaps one of the more common problems is that Sessions and Presbyteries can be divided over certain cases, with the two sides literally at war with each other, because there may be two or more sets of presuppositions working against each other. Each side may well be sincere, in that their ideas, practices and judgments derive logically and naturally from their basic presuppositions about what God requires. But if those presuppositions are not correct, then no matter how sincere the men, their judgments will be skewed accordingly.

Therefore, for the peace and purity of the church, this summary of basic Presbyterian concepts of justice and procedure is offered in the hope of clarifying just what the historic, Reformed presuppositions ought to be for handling judicial cases.

The Presuppositions behind the BCO

For discussion purposes, we will use the current Book of Church Order (BCO) for the Presbyterian Church in America (PCA) since the PCA is the largest Reformed denomination in the United States. Other Presbyterian bodies may differ in specific details, but the general philosophy will remain the same.

The BCO is a direct descendant of the Directory of Church Government published by the Kirk of Scotland in 1647. It has been revised, edited, amended many times since 1647, but its basic procedures are derived from the historical situation that faced the Puritans and Presbyterians in Scotland and England, as well as other Reformed churches in Europe. All these churches had suffered under the hand of ecclesiastical tyranny, with ministers being arrested, imprisoned, banished and sometimes executed. Frequently, these convictions were straightforward perversions of justice. When the Kirk of Scotland developed the Form of Government and Rules of Discipline, they had a direct, personal interest in ensuring just judicial procedures so that ecclesiastical courts would not tyrannize innocent men.

As well, the Scottish Kirk had a high view of their ecclesiastical responsibility to work for the purity of the church. Unlike the Roman courts that appeared to protect heresy, Reformed courts were designed to protect the church from error and its members from sin. Sin was to be confronted, wisely, judicially, and fairly.

Furthermore, the BCO must never be separated from the Confession itself. The same theological presuppositions that govern the Confession are both implicit and explicit in the BCO. For example, the BCO assumes that sinful men will sin, and therefore there are specific procedures to handle sin. The BCO, with the Confession also realizes the limits of any human court. The Confession, in the chapter on Synods and Councils states, “All synods or councils… may err, and many have erred.” Perfect justice is not to be had on this side of eternity. Even the best assembly of godly men, sincere in their motivations, and intent on righteousness, may err. Therefore, the Confession, and the BCO recognizes that there are certain limits to church courts. While the goal is always justice, some things are beyond the court’s ability because of the limits of imperfect men and therefore must be left for God to judge.

What Sins can a Court Lawfully Judge?

BCO 29-1 states specifically that, “An offense, the proper object of judicial process, is anything in the doctrines or practices of a church member professing faith in Christ which is contrary to the Word of God.” It then goes on to detail that the Confession, and BCO are the agreed upon standard by which a man is to be judged. Thus, note carefully, that “offenses” are “doctrines or practices” contrary to the Word of God. Church courts may rightly judge a man’s actions, or his words, to see if they are in conformity to Scripture, but they cannot judge a man’s heart.

The Scriptures themselves always remain the final standard. The Moral Law of the Ten Commandments summarizes sin. The WCF in the larger Catechism amplifies each commandment, showing both the positive and negative applications. This process itself is Biblically based, in the distinction made between case laws and statute law. The Ten Commandments give us the statute law; the other “case” laws of the Old Testament show how us how these work out in various real-life situations. The Larger Catechism follows exactly this process when it explains the meaning of the Law; the specific commandment is stated, and then both the positive and negative implications are discussed. Furthermore, in WCF 19:4, the Divines specifically mention the continuing equity of these laws to modern practice. The Old Testament Scripture proofs taken directly from the Law are often used to verify specific requirements of the Confession.

Therefore, not all sins are easy to discern; wisdom is required to determine if something is in fact, sin. A court will have to weigh a person’s particular words or actions against the Moral Law, its exposition in the Larger Catechism and its relationship to the general equity of other Biblical principles to determine whether a violation of God’s Law has occurred.

BCO 29-2 distinguishes between two types of offenses, personal or general. Such offenses are either private or general. A personal offense is a sin against a particular individual. General offenses are heresies or immoralities not particularly related to an individual. For example, a personal offense would be a man accusing someone from stealing money from him. A general offense would be a man who stole something from work that the church later found out about.

Private offenses are those known only to a few; public offenses are those, which are “notorious.” The word “notorious” needs to be clearly defined. Some people think it means “especially bad” and therefore conclude that the Session may sidestep Matthew 18 if the sin is particularly heinous. In fact, “notorious simply means, “widely but unfavorably known” (Webster’s New World Dictionary). Courts of the church are especially empowered and required to investigate and prosecute “notorious” offenses because the reputation of the entire Church is at stake, while individuals prosecute personal offenses.

Therefore, before a man can be charged with any sin in a PCA court, it must be demonstrated by either the words that he speaks, or the actions that he has done, that he is outside of our Confessional documents. He cannot be convicted in a church court of “heart” sins, because no human court can judge the heart (e.g., 1 Sam 16:7, Acts 1:24, Pvbs 21:2, etc.). To some, this may seem to fall short of justice, because often, we suspect that though we may not be able to prove a man is in sin, we suspect (sometimes strongly) that he is using the procedures of the courts to get around justice. We are often also rightly concerned about the sins of the Pharisees who were “white-washed” tombs: clean and pretty on the outside, but full of death and corruption on the inside. It is perfectly natural then to desire the courts of the Church to deal with such sins.

However, Presbyterians have as a basic presupposition that man is “totally depraved”; i.e., that sin affects every single aspect of his life and nature. Therefore, they expect that even the best efforts of imperfect men will be imperfect and that perfect justice resides ultimately and finally with God Himself. They also rightly assume that though Christ has given us procedures for restoring an erring brother, that the ministry of the Word and Sacraments, as used by the Holy Spirit, will convict godly men of sin, even heart sins. The courts of the PCA exist, not to purify the heart (though discipline against proven sins is intended to be a tool of the Holy Spirit to facilitate just this kind of change; cf. 1 Tim 1:18ff), but rather to deal with outward manifestations of sin.

Rules of Evidence

Therefore, before a man can be accused of any sin, before a church court, there must be evidence (BCO 35-1ff). Evidence is provided by one of two ways. First, evidence can be given by the testimony of more than one witness (BCO 35-3). If two or more people can testify that “So and so said such and such, or was observed doing thusly” than this constitutes evidence on which a man can be charged and convicted. But first, notice, that the BCO makes it clear that such testimony is not always credible (BCO 35-1) and the court is required to determine the reliability of any witness before reaching a judgment. Because men are imperfect, then therefore they can and do give imperfect testimony. Sometimes even sincere people are confused about situations, their memories fail them, or when challenged, they cannot prove that they saw or heard what they say they did. Furthermore, sometimes, wicked men will seek to pervert justice and lie. Sometimes, men are so wracked with anger and guilt, that they distort the truth to make their case. Therefore, even though a person testifies to another person’s sin, does not necessarily make that testimony true, or require the court to accept it; hence the need for at least two witnesses.

Secondly, notice that the testimony of two or more witnesses assumes that Matthew 18 has been followed. While this will be discussed in more detail, below, BCO 35-1 requiring two or more witnesses presumes that the accuser has gone to his brother and confronted him before be makes formal accusations against him to a church court. He has two witnesses just because he has already followed Matthew 18.

Since Matthew 18 is already assumed BEFORE evidence is brought before the court, a second rule of evidence allows a witness to bring an accusation, if he can “corroborate it with other evidence, then the offense may be considered to be proved.” For example, if one brother accuses another of lying, and then produces a letter, email, fax or some other document that verifies the accusation, the court may consider that accusation as proven. But the operative term here is “proven.” Just because a court THINKS a man may have sinned, does not mean that they can rule that he has sinned. And yes, the opposite is true as well, just because a court cannot PROVE a man sinned, does not mean that he is innocent. Guilty men go free in church courts, just as they do in secular ones, when the burden of proof is not met. However, the BCO assumes that God as the ultimate judge will ultimately correct any deficiencies of both secular and ecclesiastical courts.

The BCO also allows for cross-examination by the accused. The accused always has the right to face the witnesses against him, and is given an opportunity to dispute their testimony by pointing out things the prosecutor may have missed. The accused can legitimately call the witness’s testimony into question; e.g., if he can demonstrate that the witness is prejudiced against him, slanting the facts, leaving out crucial bits of evidence, etc., it may well invalidate the testimony.

The BCO makes an assumption, basic to Anglo-Saxon Law, which in turn is based on the Biblical Reformation of English judicial procedures under Aethelred; a man is to be considered innocent, until PROVEN guilty. A court exists to establish the facts. The court can only look at the facts that come before it (whether by the accusations of others, or through its own investigations). It cannot render a judgment on any other basis then those facts. A member of the court may well have a “gut-level” feeling that the accused is in sin, but unless that sin is proven, he cannot convict him of it.

That such evidence is necessary before an accusation of sin can be made is seen in BCO 31-2 where it states, “They shall with due diligence and great discretion demand from such persons satisfactory explanations concerning reports affecting their Christian character. This duty is more imperative when those who deem themselves aggrieved by injurious reports shall ask an investigation.” The court here first calls a person being accused to come and give an account. Before any formal accusations are made, the “accused” is given an opportunity to explain his actions. It is only if after hearing that explanation, and the court has a “strong presumption of guilt” that a man is tried by the court (BCO 31-2). This is not dissimilar to secular courts where an indictment is predicated upon the District Attorney demonstrating to a judge that they have sufficient evidence against a man’s guilt before he is formally charged with a crime.

The court has a responsibility for preserving the peace, and purity of the church. When it becomes aware that a person may be in unrepentant sin, the court has a duty to investigate it. However, the “accused” has the right to answer any questions, concerns, etc., BEFORE he is accused of being in sin. Hence, again, sin must be proven, not assumed.

The members of the court therefore have a difficult line to walk. They must, in so far as is possible among imperfect men, remain objective about supposed offenses, until reasonable evidence points otherwise. They cannot go into a situation ASSUMING that someone is in sin, until AFTER they have made an investigation. They must give a man the right to answer allegations that have been made against him, and not presume to judge the case before all the facts are in.

Matthew 18 and Judicial Process

Furthermore, before ANY of the above can be followed, the court must ensure that the general provisions of Matthew 18 have been followed. This is covered in BCO 27-5, which states that Scriptural Law is the basis of all discipline. “Proper disciplinary procedures are set forth in Scripture and MUST [emphasis added] be followed. They are; instruction in the Word; Individual’s responsibility to admonish one another; If the admonition is rejected, then the calling of one or more witnesses; If rejection persists, then the Church MUST [emphasis added] act through her court unto admonition, suspension, excommunication and deposition…”

Thus, it is clear, that the BCO requires an accuser to follow Matthew 18, if he wishes to make accusations against a brother before a court of the Church. If an accuser comes before the court and has not followed Matthew 18, it is the court’s responsibility, to send that person back to the “accused” and cannot hear his complaint until he has followed those steps. The reason is simple; all church discipline has as its foundation, the desire to bring an erring brother to repentance. Discipline is about restoration and reconciliation. It is not about “getting even” with someone with whom one has a grudge. It is not about the church courts censuring someone they dislike. It is not even like the secular courts whose primary concern is lawful vengeance against criminals (cf. Rms 13:1ff). Discipline is always predicated upon the desire to restore a brother. Therefore, the well being of the accused is always of paramount concern.

Now it may appear that there is a bit of conflict here between BCO 27 and BCO 31. BCO 27 requires Christians to follow Matthew 18 before bringing accusations to the court. But BCO 31 allows the court to institute an investigation against someone after having the “accused” come forward and explain his actions. But how does the court ever hear about an accusation against someone if accusers are required to follow Matthew 18 before they go to a court of the church? Does BCO 31 then allow a court to listen to gossip and slander, practices, which are forbidden in Scripture?

The short answer is, “no.” A court of the church can hear of things in lawful ways, which gives them legitimate concerns about the spiritual well being of those under their care. BCO 31 does not require anyone to make any accusations against anyone to the court. For example, a person could come to the Session and ask a question such as, “My Sunday School teacher said in class today that you don’t have to believe in the Trinity to be a Christian, is that true?” The person asking the question is not making a slanderous accusation here, but bringing a question to the court. The court then, on its own authority can investigate this statement by calling the brother in and asking what he said, and what was the context. What the court may NOT do, is based on this one report, conclude that the Sunday school teacher in question is a heretic and must be removed.

Thus, the court might hear of things in such ways that would not be considered slander or tale-bearing, that cause them concern. BCO 31 does not open the door for people making accusations against others without following Matthew 18.

In fact, it can be argued that regardless of Session’s actions, a Christian is never allowed to make a negative report to a church court about another, and then walk away as if his duty is done. According to Colossians 3:16, Galations 6:1 and Matthew 18:15ff, God requires him to take an active part in ministering to what he perceives to be an erring brother. He cannot foist off this duty to a court of the church. The Larger Catechism states the same in dealing with the sins forbidden in the ninth commandment by stating, “holding our peace when iniquity calleth for either a reproof from ourselves” (LC Q&A 145). Thus if a man believes a brother to be in “iniquity” HE is required to reprove it! In fact, he is in sin if he “holds his peace” or remains silent about it.

Normally speaking then if Matthew 18 is followed, the court should seldom hear of a problem until the entire process is followed, UNLESS the matter is a “public scandal.” A public offense, known to many, is sufficient cause for the court to investigate a situation. But even here, in effect, the Session follows Matthew 18 in that the first step is to call the person in to give an explanation before the Session itself. Only if that explanation is unsatisfactory does the Session then initiate an investigation that could lead to formal accusations.

Matthew 18 serves several distinct, but important functions. First, Matthew 18 eliminates gossip, slander and tale-bearing. The Westminster Confession of Faith, in the larger catechism (Q&A 145) is instructive here. The sins forbidden in the ninth commandment are all prejudicing the truth, and the good name of our neighbors… speaking the truth unseasonably, or maliciously to a wrong end…lying, slander, back-biting, detracting, tale-bearing, whispering, etc.” By the Session forcing a person to follow Matthew 18 and not giving him an opportunity to accuse the reputation of another before them, then a man either confronts a brother personally he believes to be in sin, or he must close his mouth. If he will not confront, then he may not speak of it to others. As noted above, LC Q&A 145 REQUIRES a man to personally confront sin, and not to ask others to do it for him. The courts of the church, when requiring an accuser to follow Matthew 18 are in effect, requiring him to keep the ninth commandment towards his brother.

Secondly, Matthew 18 forces accusations of sin to be backed up by two witnesses, before such accusations are made to the court. Often, personal offenses can be cleared up if the people actually talk to one another, and do not get others involved. But if the “one on one” conversation does not resolve the problem, then the two witnesses are there to confirm the facts. Perhaps the accused is guilty of sin, and now at least two, if not three witnesses can confirm to the court that the man is unrepentant. However, it may be just as likely that the two witnesses will see from the interaction that it is the accuser who is in sin, that his accusations are unjust, and therefore he needs to drop them and repent to his brother!

Thirdly, Matthew 18 works to keep the courts of church just. Scripture itself teaches that men have a tendency to believe the first report they hear about another (Pvbs ). Thus, if men were allowed to make any accusations they wanted to about others, without following Matthew 18, then it is highly probable that the court would be prejudiced, by having only heard one side of the story. The ninth commandment requires judges to rule justly. However, Matthew 18 requires that any such accusations must come, only after two witnesses can confirm the facts. Therefore, when two witnesses are present to the offense, the court has every reason to believe that a violation has occurred, and can then lawfully initiate judicial process.

Even when a problem requires judicial action, the BCO still recommends that a committee from the court go to the accused and attempt to win him before a judgment is reached (BCO 31-7). Thus even at the stage where a trial may be warranted, or even in process, the BCO STILL encourages the court to attempt private reconciliation via Matthew 18.

Finally, Matthew 18 protects the accuser himself from being charged. False accusations against others are chargeable offenses according to BCO 31-9. If an accuser follows Matthew 18, then he has the two witnesses he needs to confirm his accusations. However, if there are not two witnesses, and the accusation is not confirmed, then he himself is guilty of sin.

Now there is one time when Matthew 18 is not required; when the court itself institutes prosecution (BCO 31-7). There are several possible reasons for this. First, if the court investigates a situation, then the first step is giving the “accused” the opportunity to explain his actions and justify them before the court. The court proceeds with the process, because they already have the facts, there is evidence before the court that justifies further investigation and the “accused” has had the opportunity to either refute them, or repent. Since he has given testimony before the court, then there are already more than two witnesses to the offense.

On other occasions, the court may know about a particular sin, because they are pastors, as well as members of the court. It is likely that they have been involved with the accused in a pastoral setting; counseling, advising, admonishing, exhorting, etc. Thus, the court has already in effect fulfilled all the requirements of Matthew 18. They have established the facts and worked with the brother to bring about repentance. Yet, note that even in the above cases, the BCO suggests that Matthew 18 is still appropriate during the judicial process.

TE Morton Smith, in his Commentary on the Book of Church Order says about BCO 31-7, “Here the sound counsel is given to the courts of the Church to seek to handle matters privately with an offender before actually instituting process. This would apply in particular when the offense appears to have been against the court or its members.” Thus even in these rare cases, the BCO still encourages the court to follow Matthew 18, even as they have been actively counseling and ministering to an individual in sin and now have to bring formal process against him.

Conclusion

The steps outlined above are not simply to be dismissed, as legalistic rules that can be changed, avoided or suspended upon personal judgment. In fact, the procedures in the BCO represent five hundred years of practical ecclesiastical experience. This is HOW Presbyterians resolve personal problems with each other, deal with sin, and restore erring brothers. The procedures, based firmly on a Reformed worldview, are thoroughly consistent with the Scriptures and the Confession. Members of the court take an oath to follow these procedures when attempting to resolve accusations of sin.

Of course, every member of a PCA court will earnestly desire to avoid the problems mentioned at the beginning of this paper. We do not want frivolous charges being made, or complaints to Presbytery or General Assembly about every action of a particular Session. Yet, at the same time, we have agreed that God has given these procedures to His church to maintain its peace and purity when we took our ordination vows. It is not legalistic to demand that courts follow the constitution, but absolutely necessary for an imperfect church to deal with imperfect men.

All of the above was written as guidance and instruction for PCA ruling elders in the church the author was pastoring some years ago. Sadly, when a conflict erupted in the church, some of the elders refused to follow the procedures of the BCO, and a relatively minor problem escalated into schism and division. The higher courts, then also refused to follow their own procedures. One might argue that the systematic failure of courts to abide by their own constitutional procedures sounds the death-knell for Presbyterianism. While it is true that the form of government is absolutely useless unless the men given responsibility to govern submit to it and follow it; churches without courts are lost before they start. The goal ought to be to reform church government, not discard it because sinful men fail in their duties.

The sad fact is that much of modern Presbyterianism apparently has adopted some form of “Deconstructionism” in that the constitution of the church is viewed as a “living” document that can be reinterpreted at will. Thus the modern church has again adopted the basic thought forms and value structures of the world, rather than transforming the world as our Reformed ancestors did. The result is that the courts of the church, will not do the work of the church and conflicts go unresolved. Furthermore, since discipline is one of the marks of a true church, any court that systematically perverts justice by denying its own constitution has become apostate. These are hard words, but if the words are hard, what of the actions of ungodly courts that persecutes the innocent, and exalts the guilty? Showing partiality is a grievous sin and any objective examination of recent Presbyterian court cases will show that injustice is rampant just because the courts will not follow their own procedures.

The answer though is not to flee into autonomy. Historic Presbyterianism IS the Bible’s own form of godly government for the church. But it may mean separating from those churches where justice is systematically perverted. At the beginning of this essay, we acknowledged that there is no perfect justice. In so far as one can, the Christian ought to submit to even ungodly authorities for the sake of conscience (1 Peter 2:19). But the only point to BEING a Presbyterian is confidence that the higher courts will NORMALLY give justice. If Christians lack that confidence that the courts of the church can give justice, then there is no other option but to move to a church that will. It is highly significant that the last judicial act that brought God’s final judgment on the nation of Israel was the false accusations against our Lord, and his wrongful conviction. That act of contempt by the courts of the Jewish church towards the universal standards of truth, fair evidence, accurate witnesses, etc., brought God’s wrath on them in 70 AD. Modern Presbyterian courts would do well to remeremember, and do better.