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Volume 8, Issue 3: Non Est

Real Legal Fictions

Douglas Jones

Accusations sometimes spotlight more about the accuser than the accused, especially if the accuser is the one genuinely guilty of the charge. Roman Catholic critics of the classical Protestant doctrine of justification are firmly wedded to the accusation that that doctrine involves a legal fiction, an admittedly dastardly failing, if it sticks. But it doesn't, and some Protestant reactions to the charge are rather winded in the gut. More interesting, though, is that Rome's doctrine of justification is either genuinely guilty of a legal fiction or something far worse, a legal atrocity.

Roman Catholic apologist Karl Keating gives us the background for their legal fiction objection:

The Reformers saw justification as a mere legal act by which God declares the sinner to be meriting heaven even though he remains in fact unjust and sinful. It is not a real eradication of sin, but a covering.[*]

With this in mind, the legal fiction objection is that God will not treat as righteous anyone who is really unrighteous. As God declares in Scripture, 'I will not justify the wicked' (Ex. 23:7)-- His holiness prevents it. And since the Protestant doctrine of imputed righteousness violates this standard of God's holiness, it must be false.
Some well-meaning Protestants have tried to beat this objection by sneaking in some sort of righteousness within the sinner himself, prior to God's declaration of "not guilty." They think that since God regenerates a person prior to justification (which is correct) that the growing inner holiness of regeneration can provide a righteousness by which God declares us not guilty.2 This is a poor answer, though, since God demands a perfect holiness, and regeneration is an imperfect righteousness.
A better answer chides Rome for its devotion to a Greek instead of a Hebraic view of reality. In particular, Rome's legal fiction objection rests on a denial of the moral reality of corporate representation and responsibility: if it's not in an individual then it's not real.
Scripture, however, isn't as individualistic as Rome is. In perfect, divine justice, whole families, tribes, and cities bore the guilt and punishment of their representative's sin, though those represented didn't commit the sin personally (Josh. 7:24, 25; 1 Sam. 15:2,3; 2 Sam. 21:6-9; 1 Kgs. 14:9,10; 21:21,22). Though finite humans were forbidden to inflict corporate penalties apart from direct divine command (Dt. 24:16), God's perfect justice countenances the very real moral categories of corporate, representative relations.
And so, in terms of the Protestant doctrine of justification, corporate moral status is just as real as individual moral status. Rome severs off half of moral reality. So, contrary to the legal fiction objection, Protestants too insist that God doesn't justify the wicked; instead, He justifies those who are corporately righteous in Christ (Rom. 5:12ff.). We could even put it in terms of Rome's categories, if we had to: God justifies those who have the real, ontological property of corporate righteousness. No legal fiction. No imperfect individual righteousness.
Notice, though, how the legal fiction objection might appear to turn on Rome. Rome agrees that Christ was perfectly, ontologically righteous. If Rome held that Christ bore our guilt, while denying corporate responsibility, then they would indeed have a legal fiction in which God declared a person guilty, though He lacked any sin. But this form of the accusation doesn't stand because Rome denies that Christ was punished for our sin or that He bore our guilt. Instead of a penal view of the atonement, they hold to a pecuniary or commercial view, in which, Christ ransoms us by paying a price which satisfies the Father's justice, without bearing our guilt or punishment. On this view, the courtroom picture is one in which we stand under the penalty of God and bear our own guilt, and Christ enters and pays the fine for us, freeing us, but He doesn't bear our guilt or punishment.
Now Protestants could argue against Rome's commercial view of the atonement (Is. 53:4ff; Gal. 3:13), but we can also point out that this view only shifts the objection from a legal fiction to a legal atrocity. Rome's view escapes the charge that God merely calls the innocent guilty, but in removing any notion of Christ bearing our guilt, it has God simply slaying the innocent. Keep in mind their courtroom scene: Christ bears no guilt of any kind, corporate or individual, and yet God slays Him. Yet God is exceedingly appalled at the slaying of the innocent. In the very verse they so often use against Protestants, God declares, "do not kill the innocent and righteous" (Ex. 23:7Dt. 19:10; 1 Sam. 19:5; Ps. 106:38; Is. 59:7; Jer. 22:3,17). In Proverbs 6:17, God lists the sins He especially hates, and "hands that shed innocent blood" stands prominently.
So, by following the more covenantal view of justification, Protestants avoid the charge of legal fiction and Rome's legal atrocity. Instead, we believe "He made Him who knew no sin to be sin for us, that we might become the righteousness of God in Him" (2 Cor. 5:21).
Unlike Eastern Orthodoxy's pride in its doctrinal stagnation, Rome recognizes that the Church matures in its understanding of Christian truth. In regard to the atonement, Rome embraced Anselm's rather late improvement over the Ransom-to-Satan theory of the early fathers (which the East still embraces), though they officially repudiated the Augustinian improvements building upon Anselm in the late middle ages and the Reformation. The glory of it all is that the Lord is patient with His Church's learning curve (Heb. 5:2), able to use deficient understandings all along the way, until we stiffen our heart to correction. But enough about the Council of Trent.

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