Understanding that the avenger of blood (Deut 19; Num 35) was a “private” individual, not any kind of “public” servant or government official is key to understanding the biblical nature of libertarianism (more on this in the future). Researching this issue led me to John Frame’s essay “Toward a Theology of the State.” While there is much to disagree with in the essay, Frame does one thing correctly that most people do not. Rather than starting with Romans 13, he starts in the Pentateuch and seeks to understand the authority of the sword from the fall onward and then interprets Romans 13 in light of that. That is my approach as well. Here is a brief summary:
First, Frame notes that Genesis 9:6 does not establish any kind of new institution called the state, but rather gives the authority of the sword to the family.
“State” is not a biblical category in the sense that “family,” “people of God,” “Israel,” and “church,” are biblical categories… But in what passage did God establish the state? Some have found divine warrant for the state in Gen 9:6, where God commands Noah’s family to return bloodshed for bloodshed. But this is a command given to a family. There is no indication of any new institution being established. And in the law of Moses, the execution of murderers was carried out, not by the state as such, but by the “avenger of blood,” kin of the murder victim, Num 35:19, 21; Deut 19:12. The family, here, is the instrument of justice. We have no reason to believe, therefore, that any special institution beyond the family for the establishment of justice was created in Gen 9:6.
Second, he recognizes that a natural outgrowth leads to various ways of ordering this authority as societies grow, but that these changes (including numerous judges, a head judge, and then a king) do not introduce anything essentially different in nature than the authority given to families.
What we see in Scripture, rather, is a kind of gradual development from family authority to something which we would tend to call a state. The borderline between family and state is not sharp or clear… Jacob’s family multiplied and became a nation. From nuclear family, it became an extended family, and then a “clan,” or indeed a group of clans… The picture to this point, then, is that as Israel developed from nuclear family to extended family to clan to nation, family authority became more elaborate and complicated… Was there, at this point in history, also a divinely appointed “state”? I would say no if, again, “state” refers to something above and beyond the natural authority of the family. As far back as Genesis 9, as we have seen, God called the family to execute vengeance for bloodshed, and so no new order was needed to administer capital punishment… New machinery, of course, was put in place (by some combination of tribal tradition and Mosaic appointment) to resolve disputes, but that too was essentially a family function… Apart from his prophetic and priestly functions, Moses was essentially the chief of the clan leaders, the head of the family of God. Had God not selected him directly, the people might well have selected him or someone else as a chief of chiefs, without violating the overall family structure. Such a choice would merely have been a natural continuation of the movement toward greater complexity as the nation increased in size. Indeed, there was popular ratification of Moses’ rule… During the period of the judges, no new institutions were added… From the viewpoint of the people, they are selecting another tribal ruler [the king], a “chief of chiefs,” who bears the same sort of authority held by the other chiefs or elders, but over a broader territory.
Third, he notes that this is the authority referred to in Romans 13.
Once kingship appears in history, are we then able to speak of an “institution of the state”? Well, it isn’t too important what you call it, as long as you understand what is going on. Yes, God has ordained authority within the family. Yes, he warrants the extension of that authority to extended families, tribes, nations. Yes, he warrants the popular selection of leaders to implement that authority (a selection into which, of course, he is always free to intervene, and over which he always exercises providential superintendence). Yes, that authority includes the power to use deadly force and to resolve disputes which cannot otherwise be resolved. In that sense, we may say with Paul in Rom 13:1 that “the authorities that exist have been established by God.” But it is important to remember that the authority of the state is essentially a family authority, not something different. For that reason, I consider it somewhat misleading to talk about a “divine institution of the state,” or to speak of “family, church, and state” as “God’s institutions,” on a level with one another. I shall, however, use “state” to refer to the family elder-structures beyond the nuclear and extended families.
Frame’s error is that he thinks the authority in Gen 9:6 was given to families as such, or as he later calls it, to “mega-families” (extended families with a patriarch). Genesis 9:6 never says that. The authority was given to all mankind, who merely happened to be organized in a family at the time (and families tend to make for a default/natural outworking of that authority). That’s why Cain worries that “anyone who finds me will kill me.” (Gen 4:14). (Note Frame’s attempt to deal with the problem of societies not made up of intact family structures).
And there you have it. God has given all mankind the authority to justly wield the sword to execute vengeance against physical violence and that is what Paul is referring to in Romans 13. God never instituted a special office for select individuals to rule over the rest of humanity with monopolistic authority to wield the sword in a way that no one else has authority to. Paul is simply addressing Christians who lived in an empire that wrongly claimed exclusive right to that God-ordained authority (John 18:31).
Commenting on Genesis 9:5-6 in Lex Rex, Rutherford says
The consequence is vain: His blood shall be shed by man; therefore by a magistrate ? it followeth not; therefore by a king ? it followeth not… There was but family-government (p. 28)
Rutherford incorrectly argues it’s just a general descriptive proverb about the fate of a murderer, not a command to execute murderers, but he correctly notes that it neither says or implies anything about a ruler/magistrate.
Matthew Henry notes
by man shall his blood be shed, that is, by the magistrate, or whoever is appointed or allowed to be the avenger of blood. There are those who are ministers of God for this purpose, to be a protection to the innocent, by being a terror to the malicious and evildoers, and they must not bear the sword in vain,Rom. 13:4 . Before the flood, as it should seem by the story of Cain, God took the punishment of murder into his own hands; but now he committed this judgment to men, to masters of families at first, and afterwards to the heads of countries
I believe that Henry is mistaken that God took the punishment of murder into his own hands before the flood, but he correctly recognizes there was no civil government when God commanded Noah and his descendants (all mankind) to execute murderers. When Henry argues “afterwards to the heads of countries” we would simply ask when and where did God do this?
William Findley notes
In this second infant state of the human race, too few in number to form a civil society, capable of enacting and executing penal laws, it pleased God himself, among other precepts, to prescribe death to be inflicted by man, as the penalty for murder; and as there were not, at that period, civil courts, or officers for public prosecution, he enjoined the brothers (explained to include others near of kin) of the deceased, to execute the sentence, under the penalty of God himself requiring his brother’s blood at his hands, as he had formerly done the blood of Abel at the hand of Cain. This precept, given to the family of Noah, then containing the whole human race, is still in substance equally applicable to all nations, and at all times. It is the only punishment adequate to the offence; but the appointment of the brother, or near of kin, to be the avenger of blood, arose from the then state of society, and pointed out the expediency of civil government, when men became sufficiently numerous for that purpose. (11-12)