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William D. Bontrager, J.D.

1710 C.R. 121

Hesperus, CO. 81326

Ph: 970-259-3384

E-mail: wdb@frontier.net


Ever since the rise of what has, unfortunately, become known as the Religious Right, the debate over any Christian basis to the American form of government has been going on. But what has not been seen is a debate over the question of the degree to which our legal concepts comport with biblical concepts of law and process.

I was born in 1941. As I grew up, my lawyer father, the church, and the school system preached one consistent message: "The basic legal concepts of our law and legal system are taken from the Bible."

I would summarize those "biblically based legal" concepts as follows:

We may be held responsible for our criminal acts because we have a guilty mind -- mens rea. But because we do not want to convict an innocent person, guilt must be established beyond a reasonable doubt. We have a jury to protect us from the tyranny of the monarch or the law. No act may be a crime unless it is made so by statute. We may not be twice placed in jeopardy for the same offense. We have the right to remain silent. We have a right to be free from unlawful intrusion upon our property or person. We have a right to know the charges against us, and to a trial before an impartial tribunal in the area in which the offense took place. These are the essential features of the Criminal Law.

We may be held responsible for our tortuous acts because we were negligent or reckless and caused harm to another. That is, we did something which a reasonably prudent person in same or similar circumstances would not have done, or we did not do what a reasonably prudent person would have done. That is negligence. Or we acted with a heedless disregard of the consequences knowing there was a high probability that harm would result. That is recklessness. Again there was the right to a jury, but here it was so that the community, speaking through the jury, would declare what was or was not negligent or reckless behavior. This is the essence of Tort Law.

We may be held liable for breach of promises we make where the minds of the parties meet on all necessary terms of the agreement. We might also be held liable where another acts to their detriment in reasonable reliance on our words or actions. All this is the essence of Contract Law.

We may be held liable for violating the rights of another in and to their personal, private property. This is the essence of Property Law.

In 1983, after 17 years in the law, I left the law to become a minister of reconciliation, helping people respond to conflict according to biblical principles. In 1994, after 10 years away from the law, I was called back to teach law in Eastern European universities along with a biblical world view.

In order to teach, I felt it necessary to re-immerse myself into the language of the law. In three months I read numerous books on law, government, philosophy, and theology. I also re-studied the Old Testament law of God. But this time when I read the laws of man and God, I read them with a mind-set of a reconciler. And I was surprised. I found that what I had been taught as a child was largely untrue. Let me try to explain.

The philosopher and theologian discuss the Source of Law, Purpose of Law, and Method of Law -- these constitute Rule By Law.

The political scientist and lawyer talk of the Creation, Implementation, Enforcement, and Interpretation of Law -- these constitute Rule Of Law.

And we the people must have a Right Attitude towards the law and legal system -- that is the Rule Under Law.

Now Source must be either the mind of man (darkened by sin) or a Source Outside of and Above Man (God). There is no third option. Of course, if God is, and has law for us, but does not disclose it to us, then that Source does not exist in fact. But we do have the Bible, the image of God in which we are made, the example of Christ, and the statement of the Bible that the law is written upon our hearts (Deuteronomy 30:11-14). Thus, an absolute, binding upon all, LAW does exist which will eventually vindicate Himself. That LAW will also display its purpose and method, if we seek to understand.

My studies in the past knew that the Purpose for the law of man was to restrain evil. That is, by publishing law and having a system to process violations, we expect man, in fear, to restrain his actions. History seems to put the lie to this theory.

But I was surprised to find that the Purpose of God's law is restoration of people to God and to one another. The lawyer Paul said it well: "Because by the works of the law no flesh will be justified in His sight; for through the law comes the knowledge of sin." (Romans 3:20) When we have the knowledge that we are sinners -- which knowledge we gain by comparing our life to that life which God demands of us as set forth in His law -- His law then calls us to confession and repentance. That, in turn, reconciles -- restores -- us to God.

The Method of restraint in man's law is to threaten to punish the wrong-doer. We threaten to put him in prison in criminal cases, and threaten him with bankruptcy in civil cases.

The Consequence of our focus on punishment is that when we are confronted by the law, we will deny. Denial turns to rationalization, then justification, then casting blame somewhere else. Those who offend, and those who are offended, are not only not reconciled -- restored in relationship to God, each other, or community -- but they are most often filled with anger, confusion, and bitterness by the adversarial nature of the process. This very adversarial process is, itself, born out of the punishment focus, and the need to prove "fault" as opposed to prove "acts which cause a harm". And so the participants leave the system crying for justice even when they appear to have won their case!

God's method begins with an offer of grace -- "I am the Lord they God Who brought you out of the land of Egypt, out of the house of slavery. If you would like to know how to respond to One Who loved you that much, let Me give you some ideas." God calls us to own the acts which we do which harm others. He then invites us to confess those acts to Him and to those whom we have harmed in a face-to-face setting, aided by the community as needed. Finally, He asks us to do towards the one we have harmed such acts of justice as the Holy Spirit places upon our heart. And as this takes place, the community is called to help bear the burdens of those offended, and of the repentant offender. There is what looks like punishment only when the offer of grace is rejected.

In order to encourage this method, and because our hearts are deceptively wicked, our minds are darkened by sin, and we live in a fallen world, God did something very interesting with His law. He almost totally removed the concept of fault as we have it in our law.

You will not find, in God's law, mens rea (guilty mind) in the process of determination of responsibility for an act which hurts another. You will find it only where doing the act is denied and conviction for having done the act has taken place; that is, where the offer of grace was rejected by refusing to take ownership of one's actions. In such a case, the restitution is increased as a "punishment" so that "crime does not pay." But the "crime" involved is the crime of living in self-interest (refusal to take ownership of acts which have hurt others) rather than in other-interest (ownership and seeking to make things right). In such a system, the need for massive numbers of statutes is diminished (note that there are only 10 commandments!). So is proof beyond a reasonable doubt (except in capital offenses where two eye witnesses were required). Any most of the other "protections" which we think of do not exist.

Nor will you find negligence or recklessness in His law. If you graze your field bare, and your animal goes onto your neighbor's field, you make an equal restitution of the first fruits of your land. (Exodus 22:5) We read this case in the Bible, and we think: "Well, he must have been negligent and allowed his animal to wander. Of course he should pay for his negligence. If he were to prove that the fence was stout, and a sudden wind blew a tree over and ruptured the fence and the animal went out through the rupture before it could be repaired (allowing a reasonable time for discovery and repair), then he would not be liable for it was an 'act of God' which caused this and he was not negligent." But the passage in Scripture does not say this. The passage says: "Your animal got out, a harm resulted, make it right for the sake of relationship and peace." Maybe God was also taking into account in this case example (note: the Ten Commandments are the Statutory Law; these examples given are Case Law showing application of the Statutory Law!) that letting your field be over grazed was a denial of His demand that you tend His earth properly. Maybe the over grazing is a sign of a selfish heart rather than living responsibly in community.

You will not find a concept such as "meeting of the minds" in matters of contract. Instead, you find the simple statement to honor your vows, for vows are made as unto the Lord. (Numbers 30:2)

And you do not find an absolute "my property" in the Bible, but property held as steward for God, and subject to periodic partial re-distribution.

What you do find in God's law is what, in the law of man we call Strict Liability. It exists in some crimes, some torts, and some instances of contract. These laws say that if you sell alcohol to a minor, you are guilty. These type of laws do not ask for what was going on in your mind, or call you evil. They do not compare your action to some reasonably prudent member of the community. They do not care what precautions you took, or how reasonable your choice may seem to have been. No, the law is strict -- you did the act, the act causes a harm in the eyes of the society which made the laws, and you are asked to take responsibility for your action without excuse, justification, rationalization, or casting blame.

All of God's law is strict liability! We recognize the Ten Commandments as such -- "Thou shalt not." But we read the case law as something different. But case law can only be read in the light of statutory law, and in light of the declared purpose and method of the Source of the law.

God, you see, does not want us playing mind games or heart games. He wants us to confess the things we do which hurt others and seek to make right the wrong. In this way we may restore relationship with the other person. In this way we lessen the need for the community to choose up sides and lose peace. In this way we avoid confusion, anger, bitterness, and the constant crying for justice. Justice, after all, comes from God, not rulers who can only grant favors (Proverbs 29:26), and it comes only to those who deal with conflict according to biblical standards. But that is also for another article.

This brings me to three closing questions:

(1) Why to we rail against strict liability when it comes from God, but not when it comes from man?

(2) Is it possible for man's law and legal system to offer restoration as an option at the start of the process? I know people cannot be forced to live in peace with one another. In fact, if we could simply agree, and live out our agreements, we would have no need for law. Justice is a word which we would not have in our vocabulary were it not for our conflicts.

Well, I happen to believe that we can have systems which offer restoration and reconciliation, and which reserve punishment for those who reject the offer of grace. I also believe that we can have systems which can respond to repentance regardless of how late in the process that repentance may show forth.

(3) Assuming this is possible, what would such a system look like? What legislation would be needed? How would police act differently? Prosecutors? Lawyers? Judges? Probation officers? Correctional officers? I have a number of ideas. Central to them all is the need to train people to be ministers of reconciliation. But all that is also for another article. For some ideas, see [Reconsidering and Redefining Justice].

If what I am suggesting here is accurate -- that our legal concepts are far from God's -- then it is time for the lawyers, philosophers, theologians, and politicians to sit down together and begin to dialogue on how to change. In light of the wide-spread dissatisfaction with the law and legal system of the U.S. today, what can we possibly lose by taking a close look at God's ideas for Restorative Justice?