ANTONIUS MATTHAEUS OOR DIE MOSAIESE STRAFREG VIR VANDAG

ANTONIUS MATTHAEUS OOR DIE MOSAIESE STRAFREG VIR VANDAG

Dr. Greg L. Bahnsen is nie net bekend vir sy groot bydrae in die gereformeerde apologetiek nie, maar ook die gereformeerde etiek, nl. Teonomie, ‘n reformatoriese oproep dat daar o.a. opnuut ook gekyk word na die algemene beginsels (‘gemene reg’ = ‘general equity’, WCF 19.4; NGB art. 25 ‘getuienisse van die wet en profete’) van die Mosaiese burgerlike wetgewing en strafreg vir moderne samelewings.

Sien hierdie aanhaling uit ‘n artikel (“Roman Dutch Criminal Law and Calvinism: Calvinist Morality in De Criminibus (1644) of Antonius Matthaeus”, deur prof. Janwillem Oosterhuis, Maastricht Universiteit) van ‘n 16de eeuse calvinistiese gelowige juris (Antonius Matthaeus, 1601-54), wat wys dat die basiese grondslae (vanselfsprekend nie die detail nie), van Bahnsen se teonomiese etiek, niks nuuts is nie (wat nuut is vandag, is soveel vyandskap vandag teen God se wet vanuit sekere gereformeerde dampkringe).

MATTHAEUS skryf as volg, net ‘n paar aanhalings (subopskrifte bygevoeg):

Mosaiese wetgewing vanuit die Dekaloog geld nog vir vandag se magistrate:

“All Mosaic Laws, on the evidence of Duarenus and Contius, which pertain to the teaching of the Decalogue have their foundation in natural equity and bind Christians today. This law does not exclusively belong to the courts, but in part to morals: since our Saviour in  different places confirms laws of this nature (for example John 8:3; I Corinthians 10:8; Matthew 15:3–4; Matthew 26:52; Job 12:8 juncto Deuteronomy 15:11; Matthew 5:8 et seqq.), it follows that they are not abolished and cannot be abolished by the decree of any human being, since every magistrate ought to be the servant and executor of the divine will (Romans 13:1–4). …. This law [i.e. on the capital punishment for adultery] does not belong exclusively to the courts nor was it written for the Jews alone, but is in accordance with natural reason and it has reference to the observation of the seventh commandment and it must be regarded as of a mixed nature, in part belonging to the courts and in part moral. Laws of that kind bind us even today, as I said in the preceding book in the Title on Theft.”

Die strawwe moet pas by die oortreding:

… whenever Natural Law and the provisions of Divine Providence lay down by what penalty a particular class of crime is to be punished, a judge or legislator should not readily allow himself to be led astray from these. …

As far as the law of God concerned, (…) it must not be understood as concerning simple talio, but proportionate justice, if I may say so. For that rule which the Almighty God gives [i.e. Exodus 21:24], is intended to explain that the punishment ought to fit the crime,  …).

Punishment of an offence is χδ´ιχησις (an avenging); therefore where there is no offence there ought to be no punishment (D. 48.19.20, C. 9.47.22) and the penal laws should be a terror to the guilty and a protection to the innocent. Finally, each one is subject to a lot fitting his own deeds, and he is not made a successor to anotherman’s crime (D. 48.12.26). If someone cannot observe this equity from natural law, let him then at least observe Divine Law which forbids children to be punished for the crime of their parent (Deuteronomy 24:16). …”

Geen marteling nie

“… although very many juridical laws are found in the Holy Bible, however no trace of interrogation under torture can be found. It is very unlikely that, if torture were necessary to obtain the truth, such a wonderful discovery would have been omitted by the Almighty God (to criticize his commandments is to commit a sin).

Onskuldig tot skuldig bewys is

“First and foremost is that it is utterly abhorrent to natural equity for anyone to be tortured before it is established that he is guilty. For all physical pain is punishment even if it is  inflicted before sentence. However, there ought to beno punishment, where there is no offence since punishment is retribution for an offence.”

Die burgerlike owerhede het nie absolute mag nie en is nie verhewe bo die Goddelike reg nie

“… not even the emperor, who has supreme power and is above the law, can take something away from private citizens without cause,…. For natural reason, the precepts of the law and also the eighth commandment state that no one must be harmed, that no one’s property shall be taken away without cause. That which is ours cannot be transferred to another, without our own cooperation. Moreover, the emperor is not above Divine Law, nor the Law of Nature, and furthermore, he voluntarily submits his preeminence to the Civil Law…”

‘n Paar aanhalings van prof. Oosterhuis uit sy artikel oor Matthaeus:

“… Matthaeus argued, however, that also the punishment of crimes was part of the moral law, at least partly, admittedly in the sense that magistrates were limited in their discretion insofar that they should not impose a capital penalty for theft. Indeed, several Protestant theologians defended that the kinds of punishment of the crimes in the Mosaic Laws pertaining to the Decalogue were also of a moral and enduring nature, not just the definition of the crimes. …  When divine law deviated from Roman Law in defining a crime, Matthaeus principally followed divine law.”

“In De criminibus, Matthaeus thus made a distinction between Biblical moral teachings that had a direct bearing on criminal law—moral and enduring laws—and teachings that had no such direct consequence for the law—religious prescripts. The meaning of this distinction can be more fully understood in the context of contemporary Protestant theology. …”

“For Protestant theologians, such as Luther, Melanchton, but also Calvin, Beza and Althusius, the Decalogue and the Mosaic laws explaining those, but also teachings of Jesus, such as the Beatitudes and the Golden Rule, were moral and enduring laws. … Matthaeus firmly stood in this Protestant tradition—both Lutheran and Calvinist—because he indeed considered the Decalogue and the Mosaic rules explaining those commandments, as a central piece of legislation, as legal rules valid for contemporary society, and equated them with natural law: for Matthaeus the Decalogue and the Mosaic teachings pertaining to it indeed corresponded with ‘natural equity’, ‘natural reason’, natural law’ or ‘the law of nature’.

Although Matthaeus uses the terms divine law and natural law respectively, he appears to make no fundamental distinction between divine and natural law.133 In De criminibus, the borderline between divine and natural law thus remains unclear. Natural reason seems necessary to know natural law; but many moral and enduring principles in divine law can also be grasped by natural reason. …”

“Matthaeus’s Calvinist conviction is undeniable in De criminibus. This Calvinist conviction becomes particularly evident in contested issues of criminal law. At these places, in discussion with Civil and Canon lawyers, but particularly also with other Reformed theologians and legal scholars, Matthaeus developed his own stance, on how to interpret and explain Roman criminal law and local customary criminal laws in light of the orthodox—Calvinist—religion.

For Matthaeus, as a true Calvinist, the ultimate source of law was divine law. Matthaeus’s consequent Calvinism can help to explain certain ‘modern’ opinions, such as his rejection of torture as a mean to achieve confessions. The inadmissibility of torture was based on the idea that punishment was a retribution for an offence: for Matthaeus, this idea was eventually grounded on Scripture, i.e. the divine will, the ultimate source of law. Here, Matthaeus’s modern opinion is thus directly based on his Calvinist conviction and the application of this conviction on criminal law.”

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Sien ook hierdie bron oor Moses se juridiese wette vir vandag: Polyander en die Synopsis

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